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 disability
2.
C
USTOM
•
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?
o
Held: 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.
o
Held: Personal practices of an expert witness are irrelevant to determining “general practice” and industry custom.
o
Court 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?
o
Held: 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.
o
Held: 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.
o
Court 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.
