1 holding a professional standard of care does not

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1. Holding: a professional standard of care does not govern the car industry re: malpractice. i. Unlike malpractice cases, P need not present explicit expert testimony establishing the standard of care. ii. The P need only prove that the D’s conduct presented an unreasonable, foreseeable risk of harm. 2. Rule: as a matter of public policy, industries are not permitted to establish their own standard of conduct b/c they may be influenced by motives like saving time, effort or money. Therefore, issues of defective design are not malpractice issues – automobile manufacturers do not fit into this category. e. Definition: Professional – must be an intellectual activity with discretionary behavior or decisions, i.e. non-routine and non-standardized. 3. Applying the Professional Standard in Medical Cases a. Geographic Scope of Professional Standard – should a doctor be required to act as well as doctor’s in his locality, or should his standard be measured against a national standard of care? 1. Vergara v. Doan – parents claim negligence by a doctor during delivery, causing baby severe and permanent injuries. i. Holding: Abandons standard of locality; no longer applicable today ii. New Rule: Doctors must exercise a degree of care as practitioners in the same class in which he belongs. b. Informed Consent – doctors must obtain informed consent from their patients before performing procedures on them. They disagree over the standard of judging whether the doctor has provided enough information to a patient to satisfy the informed consent process. (Frolik: if you didn’t get consent, it would be battery) Consent in the medical field is called informed consent, and a patient must be informed of risks, benefits and alternatives . i. The major exception is emergency doctoring – this is the emergency exception, and you don’t need informed consent. You can only stabilize them, and from there on, need consent. 2. Largey v. Rothman – dispute over what doctor warned P – parties dispute whether he stated that the biopsy would include the lymph nodes in addition to breast tissue. P says that doctor did not advise her of this risk. i. Responsibility of doctors to disclose the risks of a procedure – the prudent patient, or materiality of risk standard. ii. Rule: proper standard is one that focuses on what the physician should disclose to a reasonable patient in order that the patient might make an informed decision. A patient has his/her own right of self-determination. a. Under this test, P must prove that physician not only failed to disclose, but also that such failure was a proximate cause for P’s injuries. C HAPTER T EN : O WNERS AND O CCUPIERS OF L AND 1. Introduction a. Property has a special status of law – reflects our country’s foundations in the law, way back to feudalism.
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Christopher Reinemann
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