Implied primary 3 implied secondary almost all fall

This preview shows page 16 - 18 out of 22 pages.

3. “Implied Secondary” almost all fall into this category; assume risk maybe you shouldn’t havePlaintiff’s assumption of the risk plays a role in the no duty/no breach elementUse Hand Formula to say plaintiff’s conduct either assuming well-known risk or is negligentConclusion: def. either has no duty or has not breached the duty.Indeterminate plaintiff problem & possible solutions A lot of different people suffer from the condition. Some of that condition was caused by exposure to a substance or form of fault but you can’t tell which plaintiffs Ex: 1 defendant causes colon cancer and there are 100 cases of cancer. We know that 30 of those cases were caused by exposure. But, no plaintiff can establish causation (if 2/3 then all would establish causation) – either over or under every timeVazquez16
Prof. ChurchA common way we see the indeterminate plaintiff problem solved is in a class action suit, or representative litigation. We do not have a great solution for this. However, some suggestions to solve this are to use legislation, create funds, or tax the industries in order to allow the recovery needed to plaintiffs while being fair to the defendants. Louisiana awards "lost chance" damages in a very limited set of cases. Please discuss the rationale behind awarding lost chance damages, the limits applicable to such damages, and why lost chance damages are so limited.As seen in Smith v. State of LA Dept. of Health & Hospitals, lost chance of survival does not change the “but for” standard, but rather changesthe notion of compensable injury. For someone with a terminal illness, they may have died despite the lost chance. If the compensable injury was death, “but for” the negligence, they may still have died. To allow plaintiffs in this situation to still have an opportunity to recover, we change compensable injury from death to lost chance. Therefore, we would ask “but for” the negligent act, would the plaintiff still have suffered the lost chance of survival?In Smith, the doctor failed to inform the patient of his condition. Ultimately, there was a 90% chance that Smith would have died anyways, but recovery was available based on lost chance of survival rather than death. This approach is limited to medical malpractice. In Smith, three ways to measure the value of lost chance of survival are discussed. The first is a formulaic approach; probability of survival multiplied by the deathdamage. The second is giving full damages as if a wrongful death case. However, this does not work because causation cannot be established since the “but for” standard cannot be met, as discussed above. The third is a jury valuation, in which the jury determines how much the lost chance is worth. The juries would likely measure this like the first option in a formulaic approach. However, under Louisiana’s Medical Malpractice Act, there is a controversial cap at $500,000 for medical malpractice cases.

  • Left Quote Icon

    Student Picture

  • Left Quote Icon

    Student Picture

  • Left Quote Icon

    Student Picture