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Question 1

What is the physician rule for informed consent?

Answer 1

Liability is based on the doctor’s nondisclosure of the risk, so the plaintiff must show that the customary practice of doctors in good standing in that community is to disclose the risk

Question 2

The standard of care for the physician rule is set by what and proved by what?

Answer 2

Set by custom and proved by expert testimony

Question 3

If there is a 5% risk of loss of hearing that the doctor doesn’t tell a patient about, what does the patient have to prove under the physician rule for informed consent?

Answer 3

That the professional custom would be to divulge that risk

Question 4

What is the patient rule under informed consent?

Answer 4

Doctors must disclose all material risks involved in a procedure/treatment and divulge anything that a reasonable patient would want to know in making the decision to have a procedure

Question 5

How do you determine materiality for the patient rule for informed consent?

Answer 5

Look at the gravity and probability of potential harm

Question 6

What is an example of a material risk under the patient rule?

Answer 6

Any real risk of death

Question 7

What is an example of a risk that is not material under the patient rule?

Answer 7

Risk of infection

Question 8

For informed consent, a doctor must divulge what?

Answer 8

• risks of the treatment
• available alternatives and their risks
• risks of not having the medical procedure

Question 9

If you choose not to have a pap smear, because the doctor didn’t tell you about the risks of not having it, what do you have to prove for an informed consent breach?

Answer 9

That you would’ve had the procedure if you had known the risks of not having it

Question 10

Can you claim negligence if a doctor doesn’t refer you to a specialist?

Answer 10

Yes, so long as you can prove a referral was required and it would’ve led to a reasonably better outcome or improved patient chance

Question 11

Can laypeople determine what is material for an informed consent situation?

Answer 11

Yes generally

Question 12

What do you have to discuss for an informed consent breach on an essay?

Answer 12

• that the doctor didn’t disclose a material risk
• that if you had been informed, you wouldn’t have had the procedure
• a reasonable person in your situation also wouldn’t have had it
• adverse consequences occurred

Question 13

What are exceptions to informed consent breach?

Answer 13

• emergency
• therapeutic privilege
• lack of experience

Question 14

How is emergency an exception to informed consent breach?

Answer 14

Can justify the nondisclosure, especially if the treatment was required to protect the plaintiff’s health, it was impossible to get consent, and the doctor had no reason to believe the plaintiff wouldn’t consent

Question 15

How can therapeutic privilege be an exception to an informed consent breach?

Answer 15

If the doctor thinks that disclosure would be detrimental to the plaintiff’s well-being, he doesn’t have to disclose it

Question 16

How can lack of experience be an exception to informed consent breach?

Answer 16

An inexperienced doctor doesn’t have to tell the patient that he has never performed the procedure before

Question 17

When would expert testimony not be required in a medical malpractice situation?

Answer 17

If the doctor’s conduct is so egregious and obvious that a layperson can identify the breach of duty

Question 18

If respectable medical opinions differ about the best technique to use, what must the doctor do?

Answer 18

He can follow either view

Question 19

What is attorney malpractice?

Answer 19

• the relationship between the attorney and the client establishes a duty
• the custom of the profession sets the standard of care
• breach happens when the lawyer fails to meet the standard of care

Question 20

Unless malpractice is glaring in an attorney malpractice situation, what does the plaintiff need in order to prove the standard of care and breach of duty?

Answer 20

Expert testimony

Question 21

What must the P prove in an attorney malpractice situation?

Answer 21

He must provide by a preponderance of the evidence that if it weren’t for the attorney’s negligence, he would’ve prevailed in the underlying action

Question 22

What has to happen in an attorney malpractice situation to figure out if the plaintiff would’ve prevailed on the initial lawsuit?

Answer 22

A trial to determine if he would’ve prevailed, and then a trial for the malpractice, so essentially a trial within a trial

Question 23

What is the attorney standard of care?

Answer 23

Custom of behavior of other lawyers in good standing in the profession

Question 24

What are the two major rules for informed consent?

Answer 24

• Physician rule

- Patient rule

Question 25

What are immunities?

Answer 25

Things that protect the defendant from tort liability

Question 26

Is an immunity a defense?

Answer 26

No because it is not dependent on the plaintiff's behavior

Question 27

What do immunities depend on?

Answer 27

The defendant's status or relationship to the plaintiff

Question 28

What are the different tort immunities?

Answer 28

- charities - spouses - parent-child - government - family members - public duty doctrine

Question 29

What is a charitable immunity?

Answer 29

Historically charities were immune from tort liability, but this is no longer the case

Question 30

What is spousal immunity?

Answer 30

Historically spouses couldn't sue one another, but now that is not true

Question 31

If an exam has a tort that is committed by one spouse against the other or a parent against a child, how do you deal with this?

Answer 31

Mention the common-law rule first, then explain that it has been abolished or modified

Question 32

What is parent-child immunity?

Answer 32

Doesn't allow tort actions between parents (and anyone standing in loco parentis) and their non-adult children. Intentional torts and personal injuries caused by negligence can be collected for

Question 33

What is the current status of the parent-child immunity?

Answer 33

Some states have abolished it, others have kept it, others have partly abolished it

Question 34

What is government immunity?

Answer 34

At common-law it prevents any tort suits against the government, but modernly many states and the federal government have waived this immunity in some situations

Question 35

What are three different categories of government immunity?

Answer 35

- discretionary functions - ministerial functions - proprietary functions

Question 36

What are discretionary functions under the government immunity?

Answer 36

Policy making decisions where immunity is allowed because decision-makers are held accountable through the electoral process

Question 37

What are ministerial functions as a part of government immunity?

Answer 37

Government conduct that implements/executes policy decisions, and there is no immunity here if the government negligently performs

Question 38

If the government makes the decision to do something, and they do it, but they screw it up, what happens?

Answer 38

No governmental immunity because that is considered a ministerial function and it was negligently performed

Question 39

What is a proprietary function as part of government immunity?

Answer 39

When the government is doing something that is normally done by private enterprise, they are treated like a private actor, so they only owe a duty of reasonable care and there's no immunity

Question 40

If the government provides cable TV, can that be considered a part of government immunity?

Answer 40

No, because private organizations can do that so will be a proprietary function that doesn't have immunity

Question 41

Where has the federal government kept governmental immunity?

Answer 41

- intentional torts - strict liability cases - military cases - mail delivery cases - anything related to the fiscal operation of the treasury

Question 42

Is it possible for state or federal governments to take private property for public purposes without compensation?

Answer 42

No, because of due process

Question 43

What is sovereign immunity?

Answer 43

Indian tribes have this so suits against them are barred unless there's a clear waiver by the tribe

Question 44

Do family members have immunity against each other?

Answer 44

There is no immunity between siblings or when family members are coincidentally involved in an injury causing event

Question 45

If a teenager negligently hit a pedestrian on a crosswalk that turns out to be her dad, is the dad barred from recovery because a family member immunity?

Answer 45

No, because this involves family members that were coincidentally involved in an injury causing event

Question 46

What is the public duty doctrine?

Answer 46

Because public departments have a duty to everyone, they don't owe a duty to any specific individual