Read carefully Titus, Mayhew and TJ Hooper (both trial court and appellate
opinions) and following notes. Can you distinguish the three distinct rules
regarding when and how custom may be used to channel or constrain a jury’s
determination of whether the defendant’s behavior was “reasonable”?
Custom plays a different role in cases involving claims of medical malpractice
than in “ordinary” negligence. Read carefully Lamas and nn. 1-2, 5 & 7 and
Canterbury and nn. 4, 7. What must a plaintiff show to prove malpractice? What
are the rationales for using a different liability rule in these cases? Remember
Mohr and the basic rule regarding consent and battery. How is the requirement
for informed consent different than that basic rule? Why should the law require
disclosure on the part of the physician? What is/ should be the required content
of that disclosure?
Recall the basic rule of negligence and the reasons for tort law
(deterrence/compensation/corrective justice). What, if anything, is there about the
relationship between a physician and a patient that might argue for a different
rule, at least in some cases??