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Flashcards in Page 30 Deck (38):
1

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

2

What is the primary purpose of indemnification?

To prevent unjust enrichment

3

The two major circumstances that indemnity comes up in?

A. When defendant is only vicariously liable
B. When a contract requires one party to indemnify the other

4

What is a release?

The surrender of the plaintiff's claim against only one or more of the tortfeasors

5

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 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

6

What is a Mary Carver agreement?

Sometimes private agreements are made between plaintiff and defendants where defendant remains in litigation even though he agreed on a settlement contingent on the trial'soutcome

7

How did courts deal with Mary Carver agreements?

Some prohibit them, some allow them, and others say they're okay as long as the public knows about them and they aren't secret

8

What is Contribution?

Collection between tortfeasors

9

What are the common law and modern views on contribution?

A. CL: No contribution allowed
B. Modern: contribution is allowed against negligent, but not intentional Tortfeasors and only works when joint and several liability is applied

10

Who does professional negligence apply to?

Doctors, lawyers, accountants, architects, engineers

11

Why is there a 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

12

If a professional defendant deviates from the appropriate standard of care and custom in the field, what is that considered?

A breach of duty

13

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

14

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

15

If a doctor fails to act with minimal competence that would be exercised by other doctors in good standing, what is that considered?

Breach

16

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 have to have the customary level of intent and knowledge

17

Doctors are free to use what types of ways to practice medicine?

Any accepted or reputable reputable way

18

If a doctor complies with the customary practice, can he be liable for malpractice?

No, no matter how small the burden was

19

If an expert is used to testify in medical malpractice case, what is important?

Doesn't matter how the expert would've personally behaves, just what the custom of other doctors in that medical community is. Expert must be familiar with the custom applicable to the defendants practice in the same or similar locality

20

Medical specialists are held to what standard?

National standard

21

If Testifying experts disagree, what happens?

Jury decides which person to believe

22

Chiropractors are allowed to practice what?

According to their schools believe and are not held the medical standards

23

What is the duty of pharmacist to warn of side effects or excessive dosage?

No duty, because this is the doctor's job

24

If The pharmacist voluntarily undertakes to give warnings about side effects or the excessive dosage of the prescription, and negligently does this, what happens?

He is liable

25

Some courts say if the pharmacist knows of contraindications or that plaintiff has an allergy, he must do what?

Warn the patient or the doctor

26

How can Res Ipsa be used in a medical malpractice situation?

To show the harm suffered doesn't usually happen without negligence, that the situation probably involve medical malpractice, and the defendant was probably the responsible party

27

What Is usually required a medical malpractice situations?

Expert testimony

28

Can a patient terminate treatment at any point?

Yes

29

When can a doctor or hospital abandon a patient?

Only once treatment is complete

30

What does the EMTALA stand for?

Emergency medical treatment and active labor act

31

What is EMTALA?

If any person walks into emergency department and requests an exam/treatment, hospital must provide appropriate medical screening exams and necessary stabilizing treatment for the emergency condition, or transfer the patient to another facility

32

Is labor considered an emergency condition?

Yes

33

What is the only time that a hospital or doctor can transfer patient to another facility?

Once the patient has stabilized

34

What is elder abuse liability?

Each resident must receive, and facility must provide the necessary care/services to maintain the highest physical, mental, and psychosocial well-being of its patients that is possible

35

Does the good Samaritan statute in reference to doctors apply only in the roadside accident emergencies?

No, sometimes it can involve hospital care, like the case where Dr. showed up in an emergency and wasn't held liable

36

How can not getting informed consent become a battery?

If a doctor performs a substantially different procedure than what was agreed to and exceeds the scope of the plaintiff's consent

37

What is informed consent?

If an undisclosed complication arises, and the plaintiff complained he didn't get enough information about the risks of the treatment/procedure to be able to make an intelligent decision about his medical care

38

Defenses to Comparative fault?

Plaintiff's incapacity, defendant has greater knowledge/experience, defendant is professional rescuer, litigation would harm the litigants, determining this would breach constitutional values, plaintiff's conduct only caused harm to himself