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Consider the case of Helling v. Carey (84 Wash.2d 514, 519 P.2d 981,

1974).
Evidence at trial revealed that the incidence of glaucoma in patients under forty is 1 in 25,000.
(a) Suppose that the average loss from blindness in people under forty is $1,000,000, and the test for glaucoma costs $35. Use the Hand rule to determine if the professional standard of not testing those under forty is efficient.
(b) What factors may account for the persistence of an inefficient professional standard?
I attracted the case and my lecture notes

Supreme Court of Washington, En Banc. Morrison P. HELLING and Barbara Helling, his wife, Petitioners, v. Thomas F. CAREY and Robert C. Laughlin, Respondents. No. 42775. March 14, 1974. Malpractice action against ophthalmologists in which a patient claimed that she suffered permanent visual damage due to open angle glaucoma as a result of defendants' failure to diagnose and treat the condition. The trial court entered judgment for defendants following a defense verdict, the Court of Appeals, Division I, James, J., affirmed, and the patient petitioned for review. The Supreme Court, Hunter, J., held that defendants were negligent as a matter of law in failing to administer a simple glaucoma test to the patient despite uncontradicted expert testimony that it was the universal practice of ophthalmologists not to administer glaucoma tests to patients under age 40 because the incidence of glaucoma at younger ages was so small. Reversed and remanded for new trial on issue of damages only. Utter, J., concurred and filed opinion in which Finley and Hamilton, JJ., concurred. West Headnotes Health 670 198Hk670 Most Cited Cases (Formerly 299k18.80(8) Physicians and Surgeons) Ophthalmologists were negligent as matter of law in failing to administer glaucoma test to patient under age 40, thus failing to diagnose condition of primary open angle glaucoma, despite uncontradicted expert testimony that it was universal practice of ophthalmologists not to test patients younger than 40 for glaucoma because of low incidence of condition in younger patients. *515 **981 Olwell, Boyle & Hattrup, Lee Olwell, Seattle, for petitioner. Williams, Lanza, Kastner & Gibbs, Henry E. Kastner, Seattle, for respondent. HUNTER, Associate Justice. This case arises from a malpractice action instituted by the plaintiff (petitioner), Barbara Helling. The plaintiff suffers from primary open angle glaucoma. Primary open angle glaucoma is essentially a condition of the eye in which there is an interference in the ease with which the nourishing fluids can flow out of the eye. Such a condition results in pressure gradually rising above the normal level to such an extent that damage is produced to the optic nerve and its fibers with resultant loss in vision. The first loss usually occurs in the periphery of the field of vision. The disease usually has few symptoms and, in the absence of a pressure test, is often undetected until the damage has become extensive and irreversible. 519 P.2d 981 Page 1 67 A.L.R.3d 175 (Cite as: 83 Wash.2d 514, 519 P.2d 981) Copr. © West 2003 No Claim to Orig. U.S. Govt. Works
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The defendants (respondents), Dr. Thomas F. Carey and Dr. Robert C. Laughlin, are partners who practice the medical specialty of ophthalmology. Ophthalmology involves the diagnosis and treatment of defects and diseases of the eye. The plaintiff first consulted the defendants for myopia, nearsightedness, in 1959. At that time she was fitted with contact lenses. She next consulted the defendants in September, *516 1963, concerning irritation caused by the contact lenses. Additional consultations occurred in October, 1963; February, 1967; September, 1967; October, 1967; May, 1968; July, 1968; August, 1968; September, 1968; and October, 1968. Until the October 1968 consultation, the defendants considered the plaintiff's visual problems to be related solely to complications associated with her contact lenses. On that occasion, the defendant, Dr. Carey, tested the plaintiff's eye pressure and field of vision for the first time. This test indicated that the plaintiff had glaucoma. **982 The plaintiff, who was then 32 years of age, had essentially lost her peripheral vision and her central vision was reduced to approximately 5 degrees vertical by 10 degrees horizontal. Thereafter, in August of 1969, after consulting other physicians, the plaintiff filed a complaint against the defendants alleging, among other things, that she sustained severe and permanent damage to her eyes as a proximate result of the defendants' negligence. During trial, the testimony of the medical experts for both the plaintiff and the defendants established that the standards of the profession for that specialty in the same or similar circumstances do not require routine pressure tests for glaucoma upon patients under 40 years of age. The reason the pressure test for glaucoma is not given as a regular practice to patients under the age of 40 is that the disease rarely occurs in this age group. Testimony indicated, however, that the standards of the profession do require pressure tests if the patient's complaints and symptoms reveal to the physician that glaucoma should be suspected. The trial court entered judgment for the defendants following a defense verdict. The plaintiff thereupon appealed to the Court of Appeals, which affirmed the judgment of the trial court. Helling v. Carey, No. 1185-- 41918--1 (Wn.App., filed Feb. 5, 1973). The plaintiff then petitioned this Court for review, which we granted. In her petition for review, the plaintiff's primary contention is that under the facts of this case the trial judge erred in giving certain instructions to the jury and refusing her *517 proposed instructions defining the standard of care which the law imposes upon an ophthalmologist. As a result, the plaintiff contends, in effect, that she was unable to argue her theory of the case to the jury that the standard of care for the specialty of ophthalmology was inadequate to protect the plaintiff from the incidence of glaucoma, and that the defendants, by reason of their special ability, knowledge and information, were negligent in failing to give the pressure test to the plaintiff at an earlier point in time which, if given, would have detected her condition and enabled the defendants to have averted the resulting substantial loss in her vision. We find this to be a unique case. The testimony of the medical experts is undisputed concerning the standards of the profession for the specialty of ophthalmology. It is not a question in this case of the defendants having any greater special ability, knowledge and information than other ophthalmologists which would require the defendants to comply with a higher duty of care than that 'degree of care and skill which is expected of the average practitioner in the class to which he belongs, acting in the same or similar circumstances.' Pederson v. Dumouchel, 72 Wash.2d 73, 79, 431 P.2d 973 (1967) . The issue is whether the defendants' compliance with the standard of the profession of ophthalmology, which does not require the giving of a routine pressure test to persons under 40 years of age, should insulate them from liability under the facts in this case where the plaintiff has lost a substantial amount of her vision due to the failure of the defendants to timely give the pressure test to the plaintiff. 519 P.2d 981 Page 2 67 A.L.R.3d 175 (Cite as: 83 Wash.2d 514, 519 P.2d 981) Copr. © West 2003 No Claim to Orig. U.S. Govt. Works
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1 Law and Economics Lecture 6 University of Western Ontario 1. Tort Law: Introduction •A to r t is a lega l w rong . –from the Lat in word tortus which meant wrong. •To r t re fe r s to tha t bod y o f the law wh ich will allow an injured person to obtain compensation from the person who caused the injury. – Accident law
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2 An Economic Theory of Tort Law •Peop le o f ten ha rm ea ch o the r b y do ing something wrong. – automobile accidents, – punching someone at bar, – a birth-control device causes infertility •Suppose tha t the v ic t im in ea ch o f the se cases initiates a law suit. Under what body of law can the victim sue?
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1 Law and Economics Lecture 7 University of Western Ontario Negligence rule: summary •Assum ing pe r fe c t compen sa t ion and each legal standard equal to the efficient level of care, every form of the negligence rule gives the injurer and victim incentives for efficient precaution. 4. Extensions of the model 1) Activity level 2) Judicial error - Imperfect assessment of care - Imperfect assessment of damages 3) Insurance 4) Regulation
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2 1) Activity Level (p.211) Shavell – Accident law (Table 4) Residual bearer • Some liability rules induce some actors to avoid liability by satisfying the legal standard of care. In the end, someone must bear the cost of accidental harm. • We call that person the residual bearer. Residual bearer • Who is residual bearer of harm? –U n d e r th e s imp l e n e g l i gen ce ru l e The victim is the residual bearer of harm. –U n d e r th e ru l e o f s t r i c t l i a b i l i t y w i th a d e fe n se of contributory negligence The injurer is the residual bearer of harm. • In general, the residual bearer of harm internalizes the benefits of any of his or her actions that reduce the probability or severity of accidents, including more precaution and less activity.
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