1. time
2. place emergency rule
3. Over-all nature of circumstances
4. gravity of harm to be avoided
5. alternative use of action
6. social value / utility of activity
7. persons exposed to the risk (Character of person risked) -children – trespassers
AFFIRMATIVE DUTIES
1. general negative duty of care towards others (no general positive duty of care)
referred to as “misfeasance” only in special relationship
-failure to act – misfeasance – breach of affirmative duties
-affirmative duties: imposed because of public interest involved / special relationship involved
imposed by law or jurisprudence (sometimes)
“DUTY”- to exercise that degree of care, skill and diligence which physicians in the same general neighborhood and same general line of
practice ordinarily possess and exercise in like cases
-general practitioner- ordinary care of diligence
-specialist – that of an average specialist, commonly possessed and exercised by similar specialist under similar circumstances
-consider resources available to general practitioner, specialist as one of the circumstances in determining degree of skill and care
required.
-national standards – uniform standards are enforced nationally
-locality rule in relation to facilities – local medical custom and facilities in a community may affect duty of core of doctors
-neighborhood rule- degree of care, skill and diligence which physicians in the same general neighborhood and in the same line of practice
ordinarily possess and exercise in like cases
-common professional practice- compliance therewith- evidence that doctors isn’t negligent
not conclusive
-attending physician- responsible for managing residents exercise of duty
-Expert Testimony- to determine it degree of skin 3 care in the treatment of patient is exercised
-determination of the reasonable level of care and breach thereof
-Res Ipsa Loquitor – relied upon to establish medical malpractice
limited to cases when ordinary layman can conclude that there’s negligence in part of doctor
when this doctrine in availed of need for expert medical testimony is dispensed with because the injury itself provides proof of
negligence
-last chance rule- last opportunity for a better outcome, is itself an injury for which patient may recover
last chance of achieving favorable outcome/avoiding adverse consequence
prior negligence, there is a chance that he would be better off with due care
-doctrine of informed consent- doctor must secure consent of his patient to particular treatment / procedure
express/implied (doctor -client must first be established)
-reasonable explanation: generally informing patient in non-technical terms:
Right to self-determination
1. what is at stake
2. therapy alternatives open to him
3. goals expectably to be achieved
4. risk that might ensue from particular treatment or no treatment
-actions of medical malpractice based on Doctrine of Informed Consents (DFDI) – plaintiff must point significant undisclosed information
with would alter her decision (relating to treatment)
-objective reasonable patient test (ORPT) – adequate disclosure would cause plaintiff to decline expert testimony not required, plaintiff
could testify
-test of materiality
Captain of the ship of doctrine- doctor cannot blame assisting nurse for his own envision
under the responsibility to see to it that those under him performs tasks in proper manner
head surgeon- made responsible for everything that goes wrong within 4 corners of operating room
The hand test- describes a process for determining whether a legal duty of care has been breached; apportioning negligence for damages.
Emergency rule-
Tornado/turntable doctrine
-Mestres doctrine- (stop and avoid collision in a crossing)- where a person is nearing a street crossing toward which a car is approaching,
the duty is on the party to stop and avoid a collision who can most readily adjust himself to the exigencies of the case, and where such
person can do so more readily, the motorman has a right to presume that such duty will be performed
-Pennsylvania rule- violating a rule at the time of collision, presumed negligent; An rule of maritime law that if a ship is in some violation of
a navigation statute at the time of a collision, she is presumed to be at fault.
Art. 2184-2185
Art 1173
Gross negligence-
Reckless imprudence
Simple imprudence
Art. 2190-2191
elements of medical malpractice- (DBP)
Locality rule in Rel. to facilities
Neighborhood rule (general)
Requisites of res ipsa liquitor
Last chance rule
-Battery- Battery- harmful or offensive touching without permission
Elements in malpractice action based on doctrine of informed consent
Objective reasonable patient test (ORPT)
-Professional Disclosure Standard (PDS)- hysician's duty is to disclose what any reasonable medical practitioner would disclose in the
same or similar affair.
Reasonable Patient Standard (RPS)- the amount of information that a rational patient would want before making a choice to pursue or
reject a treatment or procedure.tpa