100%(2)2 out of 2 people found this document helpful
This preview shows page 5 - 6 out of 8 pages.
Minors Between 7-18:Judge the actions of the child based on a reasonable child of “like age and experience” Parental Duties: Can be held liable for the negligent acts of a child if: prior dangerous acts or failure to supervise Ordinary Person Standard:Did ∆act with the prudence that would have been exercised by an ordinarily constituted person under circumstances?•Taken into Account:Youth, physical disability, expertise (higher standard), sudden incapacity•Not taken into Account:clumsiness, imprudence, mental illness, old age•Policy considerations: allocating loss to the person who cause it, incentive for guardians to control and care for wards, remove incentives to fake disability2.CUSTOM•The TJ Hooper:Cargo is damaged in a storm b/c tugs didn’t have working radios on board and could not be warned about changes in the weather. Did tugs exercise ordinary care b/c they followed industry custom? oHeld: Custom not the measure of ordinary care, especially if custom does not meet normative standards of ordinary care. •Johnson v. Riverdale:Did the defendant doctor’s failure to pre-oxygenate a patient constitute malpractice/negligence? Defendant’s expert witness claimed it was not industry custom to pre-oxygenate; plaintiff’s lawyer prevented from cross-examining a witness about his/her own personal practices when testifying about industry custom. oHeld: Personal practices of an expert witness are irrelevant to determining “general practice” and industry custom. oCourt wants to adhere to doctrine, and believes jury will unable to determine the issue for itself, shouldn’t second guess doctor’s medical decisions that might vary throughout the practice. •Condra v. Atlantic Orth. Group: Plaintiff sues doctor for malpractice when he fails to give her a baseline blood test. Same issue as presented in Johnson: can the expert witness be impeached on cross by using his/her own personal practices? oHeld: Overruled Johnson’s evidentiary rule, not standard of care. Georgia Tort Reform Act made personal practices of expert witnesses relevant for credibility, importance of def’s right to cross. •Largey v. Rothman:Patient underwent surgery and developed lymphedema, which she was not informed was a potential risk. Claims negligence b/c she was not given informed consent. oHeld: Issue of informed consent should be assessed using the [objective] reasonable patient standard: doctor is responsible for informing all risks that could cause a reasonable patient to change their decision about whether to undergo surgery.oCourt applied TJ Hooper rule. Jury able to place themselves in the position of patients, consider non-medical elements of decision, patients have right to control bodies (battery principle), concern about medical “community of silence.” TJ Hooper Rule: custom is probative, but not dispositive, or ordinary care.