Medical Malpractice – Torts

Sheeley v Memorial hospital

  • Sheeley injured during episotomy during birth
  • Sued second year family practice resident
  • Dr SPECIAL RULE ordinary medical practice standard of care
  • Trial court refused to accept expert testimony from Dr Leslie
  • Because he was a specialist ObGYN, delivered 4,000 babies
  • Had not practiced since 1975
  • Member of New York standard of review board
  • Reasoning is, he is a standard practice doctor and Dr Leslie is overqualified.
  • Cited Soares v. Vestal (family practice did procedure in emergency, exp witns was a Neurologist. They held the Witness must be in same field)
  • Soares used improper interpretation of § 9-19-41
  • Plaintiff argues that the issue is over the procedure which both doctors know about. Statute was meant to prevent unqualified witnesses
  • Def still argues, then says the “similar locality” rule should apply — New York is not similar to Rhode Island
  • Court says “similar locality” is no longer used because there is now a national standard due to advances in modern technology.

Buja case overrules Saores and doesnt require the Dr be in the same field.

Virginia Statute requires you to have a practice of medicine within one year of the date of alleged malpractice

A hospital can be negligent in hiring Doctors, they can be considered negligent when the Dr has a bad record of injuries

You dont need Expert witenss if the issue is in the common knowledge of the layperson ie tools left in stomach.

About a dozen states by statute reject this as inconcluive???????

Can u use more than one expert testimony?

  • Argument for is more than one opinion
  • Argument against this is juries dot know which expert to believe

Procedure negligently done?

OR Did the plaintiff give informed consent to the procedure?

  • This is most common when Dr. performs a different procedure then the one asked for by the patient. (takes a mole off when doing other surgery, this is also a battery). HOWEVER there is implied consent in dire emergencies
  • Was the plaintiff fully informed in layterms of the risks involved and anyhtign else which they should ordinarily know (i cannot consent to something i dont know all about
  • • courts originally say this was battery, now more modernly is considered negligence for lack of informed consent)
  • • Well what is the standard of care? > Ordinary medical practice standard of care.
  • • If the patient had know n the risk would they have done it anyways (this looks to the ORP would have consented, not the patient after the fact)?

Practical effect on damage caps is that fewer attorneys will accept medical mapractice cases becasue it may not pay out enough to be worth the time

Negligence Law

  • Weve no seen two cases when special rules apply when you have a special class of Def
  • common carriers (utmost care) Doctors (ordinary medical practice)
  • Now we look that not all people are looked at with the ordinary reasonable person standard.

Duty to Aid Others

  • generally speaking persons do not have a duty to come to the aid of others.
  • We will look at a landmark case looking  at this (read up to first case of landowner rules)

Traditional Rule was the “Ordinary Medical Practice” Doctors set their own standard through customs

Used to have to be in same feild not similar feild

Had to be in similar locality

Now becasue of “conspiricy of silence” and advances in tech

Now you can have any person with the smae knowledge , similar practice

National Standard

You can bring in expert witnes from any locale

Most, not all states have enacted this

If a layperson doenst need medical knowlede ie Left scalpul in

Res Ipsa Loquitur can be used sometiems when the source of the negiligence isnt know (make sure to sue everyone)

Other jurisdictions are consered you umay have two conflicting testimonies from experts

In some cases there may not be a problem with the way the procedure was done, BUT there was lack of informed consent of dangers

Obvi when Doctor performs a procedure that is not authorized

When consent is void there can be a battery, BUT more recently the court has found that it is not battery but IT IS Negligence from the lack of informed consent. Because the doctor didnt inform

Some say it should be judged by ordinary practice

California says NO the paitent should be informed of all serious risk, including alternative procedures, AND must be told in lay terms

Patient must prove that the lack of information is what swayed them to have the surgery. IE they wouldnt have had procedure if they knew the risks

This is judged by a REASONABLE PATIENT STANDARD not the standard of the patient who was injured who of course would say i wouldnt have consented.

Some times the court adopts strickter standards for certain situations and relationships, as we have seen with “common carriers” with the “Utmost Care” standard. Then we also have “strict liability” on manufacturers (and retailers) who are strictly liable for their products. THESE ARE ALL JUDGE MADE RULES, where they strike out duty of due care in favor of a strickter standard.

Classic no duty rule is the “Privity Rule” manufacterers owed a duty of due care only to the purhcaser of the product. bystanders, and other people who didnt purchace were barred from any cause of action. REVERSED by Cardozo on 132/133 Holds manufacturers to a full duty of due care.


  1. First you must see what duty was owed
  2. Then and only then can you see if that duty was breached

Tarasoff v. Regents of the University of California

  • Here courts expand exceptions to the No Duty rule.
  • California has been a leading juristiction in changing duty of care for certain issues. Tarasoff rule is one of the best known rules among the medical practice. Restatement 3rd just came out, says generally speaking people owe a duty of due case. IF a court wants to apply “Noe DUty” then they have to back it up with a specific reason in policy.
  • Poddar tells Psych he is going to kill Tatiana, Psych tells authorities, they check and release. Poddar kills Tatiana, family sues Psych for failure to warn
  • Trial court dismissed the claim because there is no affirmitive duty to warn third parties. even if there is a reason to do it and it is easily done.
  • Just. Trobiener sets out some exceptions. We depart from this fundamental principle (depart from the due care)
  • Created a psychiatrist’s duty to warn third parties in danger (even without a special relationship to that person).
  • Dr. held liable because he should have warned Tatiana

Traditional no duty rule, says you do not have a duty to control or warn others from harm.

No duty to assist others, to rescue others, or to control third parties.

Classic example is baby on train tracks, surfer walks by sees baby decides to go surfing instead –> NO DUTY

Clinton sees someone starting drowning, he swims out to sea as he approached sees it is Ken Starr. WFT! Clinton turns around and Starr drowns??

Clinton has a duty of care once he begins to help rescue MIs Feasense

Mis feasence (started to help but fucked up) / non feasence (no help) DEFINE??

You do not have a duty to take reasonable care to come to a rescue or to control a third party.

¶ on top of page 158 lays out all factors, these factors all lean torwards and affirmative duty to warn.

The most important consideration is facility. What is the forseeability of harmed parties

We are leaning torwards a duty to warn, but OH UH there is a default rule for no duty,,,, oh what to do?!?

I can still create a duty to Pysch by saying the NO DUTY RULE DOESNT APPLY when there is a special relationship.

The reason not to abolish the rule is becasue what if 50 people see an accident, they cant all be responsible see note 5 on pg158

No duty (Pre Tarasoff)

Sub category no duty to warn when Dr UNLESS

Before Tarasoff Dr had to have special relationship with BOTH parties

AFTER Tarasoff the special relationship only needs to be with ONE of the parties

Basic no duty rule, then there is an exception.

One way to expand is to abolish the no duty rule OR to expand the exception.

The fundamental priniciple is there should be duty when there is a lack of due care. In this case it is judicial law making.

Rest Third

Takes view as CA of a general duty of due care. But court can find a no duty if supported by policy or principle

Taking a duty of care increases saftey, but also worried about the burden on the defendant and the community

The burden is less on the defendant if there is insurance

Court appears to be going up to the edge of abolishing no duty rule. But it is hard to draw a practical line of where to cut off no duty

We can just expand the duty of special relationships, the court says a specal relationship to one party is sufficiant therefor a Psych has a duty to warn.

Once a Psych does determine or should have determined (under professional standards) then he has a duty to warn.

Where else does the Trasoff rule apply

What if Poddar was talking to his family practice doctor.

Duty to warn of Crime

Woman at laundromat

She was stabbed four times

Police have been survailling for a recent string of stabbings

Police saw a suspicious man who they believed to be the purpatrator

Victim Yolanda v. Police >

Holding: NO, victim does not have a cause of action in tort against the police.

Liability to the police is handled on an internal basis

Note 10 the police had no special relationship with the victim

The police have no duty roll

public agencie are involved there are other elements involved

the agencys power

the role imposed by law

the budget of the agency

Concedently, this event does not show the polices’ finest hour. we think the did make a mistake, not good policing. BUT WE WILL NOT SECOND GUESS POLICE.

Government used to be immune from tort liability, changed in the early 20th century.

We dont like to interfere with public policy. Becasue every arrest would be a tort suit, every shootout etc.

But now there is tort liability for other regular type accidents.

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