Page 30 Flashcards
(38 cards)
When can someone have indemnity?
If defendant is only secondarily liable for plaintiff’s injury but is forced to pay a judgment, he can recover indemnification against the primarily responsible party
What is the primary purpose of indemnification?
To prevent unjust enrichment
What are the two major circumstances that indemnity comes up in?
- when D is only vicariously liable
- when a contract requires one party to indemnify the other
What is a release?
The surrender of the plaintiff’s claim against only one or more of the tortfeasors
What are two ways that the court can proceed if a plaintiff signs a release with one or more of the tortfeasors?
- the settled payment is deducted from the final total, so other tortfeasors pay the full amount minus that settlement
- the settled tortfeasor’s percentage is subtracted from the damages the P got from that tortfeasor, so this risks losing part of his recovery if he settles for too small a payment
What is a Mary Carver agreement?
Sometimes private agreements are made between the plaintiff and defendant where the defendant remains in litigation even though he agreed on a settlement contingent on the trial’s outcome
How do courts deal with Mary Carver agreements?
- some prohibit them
- some allow them
- others say they’re okay as long as the public knows about them and they aren’t secret
What is Contribution?
Collection between tortfeasors
What are the common law and modern views on contribution?
- CL: not allowed
- Modern: allowed against negligent, but not intentional tortfeasors and only works when joint and several liability is applied
Who does professional negligence apply to?
- doctors
- lawyers
- accountants
- architects
- engineers
Why is there professional negligence?
Because these people have specialized skills and training, so courts have to defer to expert testimony to figure out the appropriate standard of care and custom in the field
If a professional defendant deviates from the appropriate standard of care and custom in the field, what is that considered?
A breach of duty
If a professional defendant complies with the appropriate standard of care and custom in the field, what does that do?
Makes him safe from liability
What is the rule for medical malpractice?
Doctors must possess and use the knowledge and skill common to ordinary members of the profession in good standing when on the job
If a doctor fails to act with minimal competence that would be exercised by other doctors in good standing, what is that considered?
Breach
It is important to remember that for medical malpractice we are talking about what kind of members of the profession?
Ordinary, not average, so you must have the customary level of intent and knowledge
Doctors are free to use what types of ways to practice medicine?
Any accepted or reputable way
If a doctor complies with the customary practice, can he be liable for malpractice?
No, no matter how small the burden was
If an expert is used to testify in medical malpractice case, what is important?
- what the custom of other doctors in that medical community is (it doesn’t matter how the expert would have personally behaved).
- the expert must be familiar with the custom applicable to the defendant’s practice in the same or similar locality
Medical specialists are held to what standard?
National standard
If testifying experts disagree, what happens?
Jury decides which person to believe
Chiropractors are allowed to practice what?
According to their school’s belief and are not held to medical standards
What is the duty of a pharmacist to warn of side effects or excessive dosage?
No duty, because this is the doctor’s job
If a pharmacist voluntarily undertakes to give warnings about side effects or the excessive dosage of a prescription, and negligently does this, what happens?
He is liable
