October 10 Case and Notes

October 10 Case and Notes - October 10, 2008 Review: 4...

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October 10, 2008 Review: 4 elements of Negligence: Duty: question of whether there is a legal obligation to do anything or not. Breach: 1) What would the reasonable person do 2) What did the respondent D do? Then you take the difference and that difference is the breach. Causation (Take breach to causation): 1) But for the breach, would there have been damaged? 2) A public policy limitation of what is too much liability? Damages: As a result of the duty breach and causation, what are the damages. If you don’t have damages, you don’t have negligence. When the total harm, the probability of the harm times the severity, outweighs the burden, that is an unacceptable risk to take. Who is the reasonable person? Reasonable ordinary person of ordinary intelligence, who understands the common principles of the day. Customs are not determinative, it does not establish what the reasonable person would do, but is a factor. The reasonable person is judged in the circumstances that they find themselves in. They have to be in circumstances that he did not create. Moore v. The Regents of the University of California Law: A physician must tell the patient if he has personal interests that may affect his professional judgment. If he fails to do so, he may be liable for malpractice based on breach of informed consent. Facts: The plaintiff went in for treatment of leukemia. The defendant used cells from his spleen for profit. The plaintiff sued for a bunch of stuff including conversion of his spleen cells, lack of informed consent, and breach of fiduciary duty. Reasoning: The court uses three principles: 1. An adult has the right to control his own body. 2. Consent is only effective if it is informed consent. 3. The doctor must tell you about everything that is material to your decision to give consent. Thus, a doctor, in getting your informed consent, must tell you about all of his interests that may affect his judgment, or else he may be liable for performing medical procedures without informed consent. There is a competing interest in withholding information if giving the information would make a patient make a bad choice. However, the court feels that this applies only in cases where the doctor is acting solely in the patient’s best interests. The court finds that this is not the case here. Issue: Does a physician have a duty to inform the patient of his economic interest in a particular course of treatment? Procedure: Holding: A bunch of stuff happens, but essentially the court rules that there must be a consideration of the merits of the causes of action for lack of informed consent and breach of fiduciary duty on the part of the doctor who took the spleen.
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Notes from the Case: This is not conversion because he never wanted them back and never asked for them back, he abandoned them. When you abandon them, anyone who picks that up, it becomes theirs. The patient trusted the doctor to operate on the patients behalf.
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This note was uploaded on 10/20/2009 for the course TORTS 106 taught by Professor Palmer during the Fall '08 term at McMaster University.

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October 10 Case and Notes - October 10, 2008 Review: 4...

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