Proposed Rest. (3rd) of Torts: Liability for
Physical Harm (PFD #1)(2005)
Standard? =
Reasonable Person
Ҥ12. Knowledge and Skills
If an actor has skills and knowledge that exceed
those possessed by most others, these skills or
knowledge are circumstances to be taken into
account in determining whether the actor has
behaved as a reasonably careful person”
Under “Same or Similar Circumstances”
10/31/2006
Professor McNichols
1
10/31/2006
Ch. 4(B) STANDARD FOR
PROFESSIONALS
Professor McNichols
2
Ch. 4(B) STANDARD FOR
PROFESSIONALS
• Possess & Exercise
CONFORM TO STANDARDS OF:
• Skill and Care
• PROFESSION
• Ordinarily Possessed
•
BUSINESS
•
TRADE
• By Members in Good Standing
[See CB, p 70, Nt. #2 – “Average” member – Why not?]
10/31/2006
3
STANDARD FOR PROFESSIONALS
4
Heath vs. Swift Wings (N.C. 1979)
Jury Instruction:
“Negligence is. . . the failure to exercise
that degree of . . . caution which an ordinary
prudent pilot, having the same training and
experience as Fred Heath, would have used
in the same or similar circumstances.”
Heath vs. Swift Wings (N.C. 1979)
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10/31/2006
5
10/31/2006
6
1
Heath vs. Swift Wings (N.C. 1979)
Held:
* Instruction was error. New trial
* The instruction should have used an objective
standard which held defendant to the minimum
standard of care applicable to all pilots.
* The instruction erroneously held defendant to a
subjective standard which allowed the jury to consider
the pilot’s own particular training and experience,
whether outstanding or inferior, in determining the
standard of care.
10/31/2006
Professor McNichols
7
Hodges v. Carter (N.C. 1954)
STANDARD FOR PROFESSIONALS
ATTORNEYS
Hodges vs. Carter (N.C. 1954)
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8
Hodges v. Carter (N.C. 1954)
Facts (cont.):
Facts:
Plaintiff ‘s alleges: his attorneys negligently
represented him in his fire insurance claim.
The insurance companies “appeared specially” &
moved to dismiss on the grounds of lack of
jurisdiction (that the commissioner had no authority
to accept service on foreign companies).
The attorneys had served process by mailing a
summons & complaint to the state commissioner of
insurance, who accepted the service and mailed it to
the insurance companies.
The trial court sustained the service of process.
The insurance companies appealed this ruling to the
N.C. Supreme Court and won.
10/31/2006
Professor McNichols
9
Plaintiff’s Theory:
Their attorneys were negligent in failing to use an
alternate means of serving process when defendants
appealed and there was a danger that the statute of
limitations would run out.
Defense:
(1) reliance on customary practice; &
(2) in any event, they were not negligent
because they exercised good faith & their
best judgment in relying on the practice.
Professor McNichols
Professor McNichols
10
STANDARD FOR PROFESSIONALS
Hodges v. Carter (N.C. 1954)
Hodges v. Carter (N.C. 1954)
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11
ATTORNEYS: “impliedly represent” that they
*
Possess the Necessary Learning,
Skill and Ability to Practice Which
Others Similarly Situated Possess
+
* Will Exert Their Best Judgment
+
* Will Exercise Reasonable Care
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12
2
Hodges v. Carter (N.C. 1954)
Attorney Malpractice - Oklahoma
Held:
Insufficient evidence of negligence. J. for D. affmd.
Rule:
An attorney who acts in good faith is not answerable
for a mere error in judgment or for a mistake on a poin
of law which is unsettled and upon which reasonable
doubt may be entertained by well informed lawyers.
Here, defendants were not negligent in relying on
the customary practice and the lower court’s ruling,
and in their judgment on an unsettled point of law.
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Professor McNichols
13
• Collins v. Wanner 382 P.2d 105 (OK 1963)
(Court applies “good faith” judgment rule in a case
involving timeliness of appeal)
* “An attorney who acts in good faith and in an honest
belief that his advice and acts are well founded and in
the best interest of his client in no answerable for a
mere error in judgment or for a mistake in a point of
law which has not been settled by the court of last
resort in his State and on which reasonable doubt mey
be entertained by well- informed lawyers.” on an
unsettled point of law.”
10/31/2006
Standard = Conform to Custom (Med. Practice)
LOCALITY RULES =
Same Locality
vs.
Same or Similar Locality
vs.
National Standard
(76 O.S. § 20.1)
Accepted
Medical
Practice
National Standard
(Expert = Qualified vs. Standard of Care)
* Expert Testimony Rule – Proof of breach
10/31/2006
Professor McNichols
14
LOCALITY RULES
Professional Negligence (Medical)
Locality Rules vs.
Professor McNichols
15
Standard? =
Reasonable Person
10/31/2006
Professor McNichols
16
PROF. STANDARD - MEDICAL
Reasonably Prudent Physician
Boyce vs. Brown (AZ 1938)
Under “Same or Similar Circumstances”
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Professor McNichols
17
10/31/2006
18
3
Boyce v. Brown (AZ 1938)
Boyce v. Brown (AZ 1938)
Court’s List of “General rules of medical malpractice.”
Court’s List of “General rules of medical malpractice.” (cont.)
* THE STANDARD – A Licensed physician = presumed to
(1) possess the skill and learning of the average member of
the medical profession in good standing in the community
in which he practices, and
(2) to apply that skill and learning with ordinary and
reasonable care;
* EVIDENCE OF STANDARD – there must be affirmative
evidence of what the standard of medical practice is in the
community and that defendant deviated from it. Without
such evidence a jury would be merely speculating.
* DEVIATION FROM STANDARD – to be negligent there must
be a deviation from the “recognized standard of good
medical
practice in theProfessor
community.”
10/31/2006
McNichols
19
* NO PRESUMPTION OF NEGLIGENCE – there is no
presumption of negligence from the fact that a medical
treatment was unsuccessful.
10/31/2006
Boyce v. Brown (AZ 1938)
Professor McNichols
20
Boyce v. Brown (AZ 1938)
Court’s List of “General rules of medical malpractice.” (cont.)
Facts: Pl. sues for negligence in failing to x-ray her ankle
* EXPERT MEDICAL TESTIMONY/LAY PERSON EXCEPTION:
expert medical testimony is required to establish a deviation
from the proper standard of medical practice, unless the
“negligence is so grossly apparent that a lay person would
have no difficulty in recognizing it.”
* 1927 – operation on broken ankle. Def. inserts metal screw.
* CONFORMITY TO ALTERNATIVE ACCEPTED PRACTICE –
evidence that an expert would have followed a different
practice does not establish negligence, unless there is also
evidence of deviation from one of several methods of practice
approved by the community medical standard.
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Professor McNichols
21
* 1934 – Pl. returns complaining of pain in ankle. Def. examines
it; treats it (bandage & filing shoe support), but does not x-ray.
* 1936 – Defendant examines plaintiff again but does nothing
* 2 days later – Pl. goes to Dr. Kent who x-rays, discovers
necrosis of the bone & removes the screw. P recovers
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Professor McNichols
22
Boyce v. Brown (AZ 1938)
Boyce v. Brown (AZ 1938)
Expert Testimony: Dr. Kent testified –
(1) he did what was required by the ’36 condition of the ankle
but could not say how long prior to ‘36 the screw “should
have been removed;”
(2) that if the ankle was in the same condition in ’34 it should
have been removed; could not say what ‘34 condition was;
(3) that if he had been in D’s position in ’34 he first would have
concluded that arthritis was the cause of the pain, but that
“he would not have been fully satisfied without . . . an x-ray.”
On cross-exam he testified: uniting the bone with a screw was a
standard method of practice in ’34 and that the medical
standard was not to remove the screw unless there was
“trouble.”
ISSUE #1:
Was there sufficient evidence by expert testimony to raise a
jury question that defendant’s 1934 failure to
x-ray plaintiff’s ankle when she complained of pain
deviated from a “recognized standard of medical practice
in the community in which he practiced.”
HELD:
Insufficient evidence. Plaintiff’s expert (Dr. Kent) did not state
that the treatment given was a deviation from the proper
medical standard required in 1934.
He testified only that he would have done things
differently. That is not equivalent to saying that the failure to xray deviated from the proper medical standard of treatment.
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Professor McNichols
23
10/31/2006
Professor McNichols
24
4
Boyce v. Brown (AZ 1938)
Boyce v. Brown (AZ 1938)
ISSUE #2:
Was there sufficient evidence of negligence under the
lay person exception to the expert testimony rule.
HELD: Insufficient evidence.
RULE: Expert testimony is not required if defendant’s conduct
is so far a departure from ordinary standards of medical care
that even laymen know it to be gross negligence.
A lay person knows that x-rays usually offer the best
method of diagnosing skeletal changes, but cannot say that
failure to x-ray departs from the accepted standard of
medicine in all cases.
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Professor McNichols
25
ISSUE #2 RATIONALE (cont.):
X-rays are costly. Sometimes they are necessary. But
some times that are of no value or of less value than other
methods of examination and may put the patient to
unnecessary expense.
In this particular case Dr. Kent (plaintiff’s expert)
testified that his first thought would have been that the
trouble was caused by arthritis. Hence defendant’s failure
to x-ray was not “so far a departure from ordinary
methods of practice in this case that even a lay person
would know it was gross negligence.”
10/31/2006
Notes after the case (CB. 180)
QUESTION:
Why did plaintiff’s attorney not raise and
try to prove that Dr. Brown was negligent
in 1936 when he examined plaintiff’s ankle
and did nothing?
* Would plaintiff’s attorney be liable for
legal malpractice for not doing so?
Professor McNichols
27
Helling vs. Carey (Wash ‘74)
Professor McNichols
* NT. #4 Compliance with Customary Practice
Most jurisdictions give professional medical
standards conclusive weight
Very few cases have allowed Pl to recover where the
physician has complied with the “customary practice of
the profession.”
But see, Helling vs. Carey, 519 P. 2d 981 (WA 1974)
* [Evolving technology and medical practice create
tensions for physicians who believe that customary
practice is dangerous but the new standard has not
yet been generally adopted] Nevertheless, courts allow
physicians to attack the medical standard only rarely
* Judicial deference to customary practice may be
weakening however. (See, Peters, 57 W&L L. Rev 163 (2000)
10/31/2006
Professor McNichols
28
Helling vs. Carey (Wash ‘74)
• Facts: Glaucoma has few symptoms and without
a pressure test is often undetected until
irreversible damage occurs. From 1959 until
1968 defendant opthamologists thought
plaintiff’s complaints about eye irritation were
due to a contact lens problem. In 1968, when
Pl was age 32, defendants did a pressure test;
found glaucoma and plaintiff eventually lost all
her peripheral vision & a good part of her central
vision.
• JV for the defendant was affm’d by intermed. ct.
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26
Boyce v. Brown
Boyce v. Brown (AZ 1938)
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Professor McNichols
29
* Ophthalmologist's Medical Standard =
Under Similar Circumstances Routine
Pressure Test For Glaucoma = Not
Required For Patients Under 40 Years of
Age
but
Pressure test is required if patient’s complaints
& symptoms reveal to physician that glaucoma
should be suspected.
10/31/2006
Professor McNichols
30
5
Helling vs. Carey
Helling vs. Carey
* Held: Defendant = Negligent as a Matter of
Law
* Ophthalmologist's Justification for Standard:
* The pressure test is not routinely given to
those under 40 because the disease is rare in
that group
* risk = 1/25,000
10/31/2006
Professor McNichols
“Reasonable Prudence” = the legal standard (test):
31
“Under the facts of this case” Reasonable
Prudence required the timely giving of a
pressure test to this patient (even if that was
contrary to the standard of the opthamology
profession).
10/31/2006
Helling vs. Carey
On the facts of this case, custom [i.e. the medical
standard] is not conclusive. It is the duty of the courts in the
end to say what “reasonable prudence” requires to protect a
person under 40 from glaucoma. [citing the TJ Hooper case].
There was negligence as a matter of law here because,
although the risk was small, the burden of precaution was
slight. The test is simple, relatively inexpensive & harmless.
No judgment is required and there is no doubt that it can
detect evidence of glaucoma. The defendants should have
given her a “timely test” at some time prior to 1968 in the
period they were seeing her. The 1 in 25,000 person is
entitled to the same protection as the over 40 people.
Professor McNichols
33
* Critique of Opinion?
* Harmless\Low Cost?
* False Positives = very high (99%)
* Cumulative Cost of Testing?
* Effective?
* Drug treatments often ineffective
10/31/2006
Gates vs. Jensen
579 P.2d 374 (Wash. 1979)
• Statute:
(passed in response to Helling case)
Professor McNichols
Professor McNichols
34
Gates vs. Jensen
579 P.2d 374 (Wash. 1979)
* “Plaintiff must prove…defendant
failed to exercise the degree of skill,
care and learning possessed by other
persons in the same profession”
10/31/2006
32
Helling vs. Carey
• Rationale:
10/31/2006
Professor McNichols
35
* Held: Whether the defendant ophthalmologist
was negligent in failing to use a diagnostic test
was controlled by the “Reasonable Prudence”
test.
* The statute did not replace the Helling test.
It means that plaintiff must prove that
defendant failed to possess the skill,
knowledge etc. … What skill etc. he exercised
is controlled by the reasonable prudence
standard.
10/31/2006
Professor McNichols
36
6
Harris v. Groth, 663 P. 2d 113 (1983)
* Dr. Groth argued that the statute means “expected
* Statute: (another part is in issue)
by the medical community:
* Plaintiff must prove that a physician “failed
to exercise the degree of care expected of a
reasonably prudent health care provider . . . in
the class to which he belongs in the State of
Washington in the same or similar
circumstances.”
10/31/2006
Harris v. Groth, 663 P. 2d 113 (1983)
Professor McNichols
37
* Held: The statute means “expected by society.” It is
society and their patients to whom physicians are
responsible, not solely their fellow practitioners.The
legislature chose to impose upon HCPs the same
standard as is imposed upon other members of
society.
10/31/2006
Professor McNichols
38
LOCALITY RULES
PROF. STANDARD - MEDICAL
LOCALITY RULES =
Same Locality
vs.
Same or Similar Locality
vs.
National Standard
(76 O.S. § 20.1)
Morrison vs. McNamara (D.C. 1979)
(Expert = Qualified vs. Standard of Care)
10/31/2006
39
Morrison v. McNamara (D.C. ‘79)
HELD: Error to exclude evidence by P’s witness.
RULE:
A standard of care measured by the national standard
applies in D.C. , at least as to board certified physicians,
hospitals, medical laboratories and other health care
providers.
Professor McNichols
Professor McNichols
40
Morrison v. McNamara (D.C. ‘79)
ISSUE:
Should a local or should a national standard apply and
was it error to exclude evidence by plaintiff’s expert
because he did not practice in the same locality?
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10/31/2006
41
Critique of Locality Rule:
* “Relic of 19th Century” – does not match reality of
modern medicine. Education is now standardized by a
national system of accreditation; communication and
travel today undermines the need to protect rural doctors
and the other reasons supporting locality rules
* Locality rules foster sub-standard care
* Other professions - are not protected by locality rules
10/31/2006
Professor McNichols
42
7
Morrison v. McNamara (D.C. ‘79)
Morrison v. McNamara (D.C. ‘79)
RATIONALE:
A national standard should apply to nationally certified
laboratories because the same reasons apply to them as
apply to board certified physicians and hospitals:
* such labs are often staffed by physicians
* they have the same opportunities to keep abreast of
medical advances.
* they are often integral parts of hospitals &
* they generally conduct many of the routine tests
normally performed by doctors and hospitals
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Professor McNichols
43
Standard of Care
76 O.S. § 20.1
“In medical malpractice . . . the duty of
care is generally formulated as that
degree of reasonable care and skill
expected of members of the medical
profession under the same or similar
circumstances.” [CB p. 179]
‘
10/31/2006
Professor McNichols
44
Notes After the Case – CB 184 & 185
• Nt. #3 – “same or similar” locality = the majority rule
“The Standard of Care Required
• Nt. #4 – “some jurisdictions” have adopted a
“national standard”
[Jurisdictions vary in how they articulate what “national standard” means]
of Those [in The Healing Arts]
* Examples:
Shall be Measured by
1. Shilkret v. Annapolis Emerg. Hosp. (Md App. 75)
2. Vergara v Doan (Ind. 1992)
NATIONAL STANDARDS”
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Professor McNichols
3. Hall v. Hilbun (Miss. 1985)
45
10/31/2006
Professor McNichols
46
Shilkret v. Annapolis Hospital 349 A.2d
245 (Md. App. 1975)
Vergara v. Doan
593 N.E.2d 185 (Ind. 1992)
National Standard
* Rejects Same or Similar Locality Standard
adopts:
=
“Degree of skill expected of a
Reasonably Competent practitioner in
the same class to which he belongs
acting in the same or similar
circumstances.”
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Professor McNichols
47
* National Standard - but = defined as
* The Reasonable Physician . . . in the
Same or Similar Circumstances
* The Locality Circumstances =
a Factor in the Balance
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Professor McNichols
48
8
Vergara v. Doan
593 N.E.2d 185 (Ind. 1992)(cont.)
* National Standard – Competence/Resource Based
* Relevant Considerations
*
*
*
*
*
Advances in the Profession
Availability of Facilities
Specialization
Availability of Specialists (etc.)
All Other Relevant Factors
10/31/2006
Professor McNichols
Hall v. Hilbun
(Miss. 1985) 466 So.2d 856 (CB 193)
* [Physicians must] Possess & exercise the
“reasonable diligence, skill, competence & prudence
practiced by minimally competent physicians in the
same specialty or [field] throughout the United
States who have available the same general facilities
services, equipment and options [as defendant].
49
10/31/2006
* National Standard (cont.): As to Resources = [Local]
* Origins of the Informed Consent
Doctrine
* each physician should have a working knowledge of :
“Every human being of adult years
and sound mind has a right to
determine what shall be done
with his body.”
* the Facilities, Equipment & Resources (including
personnel in health related fields and their general level
of knowledge & competence) [available in the community]
&
* the Options (including specialized services in larger
cities): which are reasonably available to her – as
[J. Cardozo: Shoelendorf (1914)]
well as the practical limitations they may have.
Professor McNichols
51
Ch. 5(III) Informed Consent: Functions
A. Capron: Informed Consent Serves 6 Functions:
•
•
•
•
•
•
1.
2.
3.
4.
5.
6.
Protect Individual Autonomy
Protect Patient’s Status As Human Being
Avoid Fraud and Duress
Encourage Care in Physician Decision-making
Foster Rational Decision-making by Patients
Involve Public Generally in Medicine
Professor McNichols
10/31/2006
Professor McNichols
52
Jay Katz - The Silent World of Doctor & Patient (’84)
•
10/31/2006
50
Ch. 4(B) – Professional Standard
Informed Consent (CB 185)
Hall v. Hilbun
(Miss. 1985) 466 So.2d 856
10/31/2006
Professor McNichols
53
•
“Disclosure and consent . . . are obligations
alien to medical thinking and practice.”
•
“The function of disclosure historically has
been to get patients to agree to what the
doctors wanted”
AUTONOMY vs. BENEFICENCE
(Do No Harm)
(Doctor Knows What’s Best)
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Professor McNichols
54
9
Informed Consent
Informed Consent - Limits
Informed Consent
Battery
vs
Courts Are About Evenly Split
Negligence
* Standard = Professional Standard
vs.
* Standard = Reasonableness (Lay Oriented)
Negligence
Professional
Standard
10/31/2006
vs.
Professor McNichols
Reasonableness
Standard
(Lay Oriented)55
* “ Material Information”
(eg. D.C., Cal., Ok., Wisc.)
10/31/2006
Chap. 5 (III) - Informed Consent
vs.
Negligence
Professor McNichols
Development of Informed Consent
57
•
Fewer defenses
•
No need for expert medical testimony about what
should be disclosed to the patient
•
Causation issue = only touch w/o consent
(or privilege)
10/31/2006
Professor McNichols
58
Canterbury vs. Spence
464 F.2d 772 (DC 1972)
Informed Consent
* Justification of Professional
Standard?
•
• What patients need to know = a medical
question
• Protect good medical practice. A patient
standard would interfere with need to decide
what = best medical treatment
• Only physicians can accurately assess the
impact risk may have on patients
Canterbury vs. Spence
464 F.2d 772 (DC 1972)
•
•
56
* Advantages of Battery vs. Informed
Consent Theory?
Battery
10/31/2006
Professor McNichols
(Landmark case; rejects professional standard)
•
10/31/2006
Professor McNichols
59
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Professor McNichols
60
10
Canterbury vs. Spence
464 F.2d 772 (DC 1972)
Canterbury vs. Spence
464 F.2d 772 (DC 1972)
Rejection of Professional Standard?
* Medical Question? - what a patient
Duty to Disclose = Objective
should be told about the proposed treatment
is not a medical question. (It calls for nonmedical judgment)
* Paternalism? - the professional standard
perpetuates paternalism. Respect for the
“patient’s right of self determination”
demands a standard set by law for physicians
rather than one which they may or may not
impose on themselves
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Professor McNichols
61
A risk is material when “a reasonable
person, in what the physician knows or
should know to be the patient’s position,
would be likely to attach significance to
the risk . . . in deciding whether or not to
forego the proposed treatment.
10/31/2006
Informed Consent - Oklahoma
Professor McNichols
62
Informed Consent - Oklahoma
Facts:
Patient (Mary Jo Scott) experienced incontinence following
a hysterectomy operation. This was caused by a complication
of the operation (a tear in the vaginal wall caused by surgery.
Ms. Scott sued the surgeon for damages on an informed
consent theory, alleging failure to inform her adequately of (1)
the risks of the hysterectomy & (2) the available alternatives to
surgery. Jury verdict for defendant. Pl appeals alleging error in
the jury instructions.
Scott vs. Bradford (OK 1979)
Held:
Oklahoma adopts a doctrine of informed consent which rejects
the professional standard view. However the judgment for
defendant is affirmed because the instructions were adequate.
10/31/2006
Professor McNichols
63
10/31/2006
Scott vs. Bradford (Okla.1979)
•
Oklahoma Adopts Informed Consent Doctrine
•
Rejects the Professional Standard View
•
Adopts a Lay Oriented Reasonable Disclosure
Standard - “Material Risks” (Information)
•
Recognizes Exceptions to Disclosure as
“Affirmative Defenses”
10/31/2006
Professor McNichols
Professor McNichols
64
Informed Consent (Okla.)
* Duty?
=
“Reasonable Disclosure . . .
Under the Circumstances”
* Disclose Material Risks: (Information) including:
* Risks of Treatment
* Alternative Treatment
* Non-Treatment
* Material Risk? = “Likely to Affect Patient’s Decision”
65
10/31/2006
Professor McNichols
66
11
Scott vs. Bradford - Court’s Syllabus #1
Scott vs. Bradford - Court’s Opinion
Duty to Disclose:
Scope Duty to Disclose:
“We . . . hold the scope of a physician’s
communication must be measured by
his patient’s need to know enough to
enable him to make an intelligent
choice.” [CB p 184]
“all relevant material information
patient will need to know to make
an informed decision . . .”
“This disclosure shall include . . .”
10/31/2006
Professor McNichols
67
Canterbury vs. Spence
464 F.2d 772 (DC 1972)
ƒ Duty:
69
Informed Consent (Okla.)
Affirmative Defenses
“Disclose All Material Information”
ƒ Causation:
ƒ Injury:
10/31/2006
Conduct Caused Damage
+
Undisclosed Risk Materialized
Professor McNichols
Affirmative Defense
Privilege
70
Privilege
No Duty to Disclose if
1. Patient knows (or “ought to be known by everyone”).
2. Disclosure = detrimental to “total care &
best interests of patient”.
3. Emergency - requires treatment without
disclosure.
Professor McNichols
Patient Would Have Refused
Treatment if Told (Subjective)
Informed Consent (Okla.)
No Duty to Disclose - where
10/31/2006
68
Prima Facie Case: Elements
A risk is material when “a reasonable
person, in what the physician knows or
should know to be the patient’s position,
would be likely to attach significance to
the risk . . . in deciding whether or not to
forego the proposed treatment.”
Professor McNichols
Professor McNichols
Informed Consent - Oklahoma
Duty to Disclose = Objective
10/31/2006
10/31/2006
71
Disclosure = detrimental to “total care &
best interests of patient”.
“for example, where disclosure would
alarm an emotionally upset or
apprehensive patient.” [CB p. 184]
10/31/2006
Professor McNichols
72
12
Duty to Disclose – Exception
“Therapeutic Privilege”
Duty to Disclose – Exception
“Therapeutic Privilege”
* Most courts narrowly construe this so
called “therapeutic privilege.”
For example – compare to Scott:
* Canterbury vs. Spence: The privilege
“to withhold information for therapeutic
reasons must be carefully circumscribed .
. . For otherwise it might devour the
disclosure rule itself.”
10/31/2006
Professor McNichols
73
* Canterbury vs. Spence:
* “The privilege does not accept the
paternalistic notion that the physician
may remain silent simply because
divulgence might prompt the patient to
forego therapy the physician feels the
patient really needs. . . .”
Professor McNichols
• The exception exists:
•
* “when risk disclosure poses such a threat of
detriment to the patient as to become unfeasible or
contra-indicated from a medical point of view. . . .
•
* “occasionally patients become so ill or
emotionally distraught as to foreclose rational
decision, or complicate or hinder treatment, or cause
psychological damage . . .[or his reaction] to risk
information is menacing. . . .
•
* “the critical inquiry is whether the risk
information would present a threat to the patient’s
well being.”
10/31/2006
Professor McNichols
74
Informed Consent - Oklahoma
Duty to Disclose – Exception
“Therapeutic Privilege”
10/31/2006
* Canterbury vs. Spence:
75
Prima Facie Case
-
* Duty
+
* Causation
No Duty to Disclose:
* Known Risks
* Disclosure =Detrimental
to Patient
* Emergency
+
* Injury
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Affirmative Defenses
“Privilege”
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76
Masquat vs. Maguire (OK ’81)
Informed Consent - Oklahoma
• Def. performed a tubal ligation procedure on Pl. during the
course of a Caesarian section delivery of her child. Pl alleged
that Def. did not adequately inform her because he did not tell
her that were other methods of sterilization available, with
different chances of reversibility, which would have given her a
chance to choose.
Masquat vs. Maguire (OK ‘81)
Held: Pl was not entitled to an IC instruction because:
(1) the difference in reversibility was “not so significant as to
vitiate consent” and
(2) there was no evidence of any causal linkage between
“some unrevealed risk and the injuries complained of.”
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78
13
Informed Consent - Oklahoma
Smith v. Reisig (OK ’84)
* Pl suffered a complication during a hysterectomy operation. She claimed that the
surgeon was negligence both because she had performed an unnecessary
hysterectomy and because she had inadvertently, but negligently cut her bladder.
Alternatively she claimed that the surgeon failed to inform her (1) of the inherent 1%
risk that her bladder might be cut inadvertently, and (2) that hormone therapy would
have been an available alternative.
Held: (1) there was no evidence of causation as to the 1% risk of an inadvertent cut so
the court did not have to decide whether the risk of cutting was “a material risk” &
(2) there should be a new trial, however, because there was sufficient evidence that
the hormone alternative therapy was “material information.” Pl testified that she
would have chosen it if she knew & an EW testified it was a feasible alternative.
Smith vs. Reisig (OK ‘84)
Note: (1) the court indicated that the requirement that PFC element that the unrevealed
risk needs to materialize does not need to be met in an non-disclosure of alternatives
type of case &
(2) the court reaffirmed the Scott holding that the OK test for causation is
subjective: ”What the Pl would have done if told. “
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79
“Material Information?”
Expansion of the Boundaries
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80
Possible Extensions of Doctrine
Beyond Medical Information?
Distinguish:
Moore vs. Regents (Cal. 1990)
• Information about the Medical Intervention
* Proposed Treatment
* Medical Alternatives
* Non-treatment
[Most courts limit the IC doctrine to such information]
* Conflict of Interests Information
* Held: physician must disclose personal
interests unrelated to patient’s health, whether
research or economic, that may affect the
physician’s professional judgment.
• Other Types of Information - which a patient would like to know and
- which are “likely to affect the patient’s decision.”
[There is a trend toward some expansion.
Where ought the line be drawn? ]
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81
“Material Information?”
Expansion of the Boundaries
•
Physician Specific Information
* HIV status of surgeon?
* Experience
* Johnson vs. Kokemoor (WI ’96)
* Impaired physician (alcoholism)?
* Physician Impairment
* Alcohol/Drugs?
* HIV Positive Physician?
* Other?
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82
CAPACITY OF PHYSICIAN?
Moore v. Regents (Cal. 1991) (financial interest)
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Professor McNichols
Extensions to Other Information?
Conflict of Interest Information
*
•
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* Malpractice Record?
83
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84
14
Ch.IV(4)(C) Aggravated Negligence (CB 197)
Informed Consent – Oklahoma
OKLA.= Disclose “Material Information”
• “Degrees” of Care
See: McNichols, “Informed Consent in
a “Material Information” Jurisdiction,
What Does the Future Portend?, 48
Okla. Law Review (1995)
• “Degrees” of Negligence
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Professor McNichols
• Willful, Wanton and Reckless Conduct
85
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CUSTOM
Sub-Group
See: Rest. (3rd) Torts Liability for Physical
Harm, (PFD #1) § 2
Medical
Profession
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87
Trial Court
Violation
App. Ct.
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Negligence?)
Professor McNichols
“Negligence”
88
Tension
Particular Standard
(Reasonable Person
in “Circumstances”]
(Breach of Duty)
This Conduct =
Unreasonable.
Professor McNichols
(Fixed Rule:
“Rules of Law”
General Standard
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LEGISLATURE
=
Standard of Care
Duty: = avoid
COURT
Jury
* Reckless – CB: p199 = Deliberate and c
conscious awareness of a known high risk of
harmto another [Rest. 2d, § 500 (1965)]
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86
Rules of Law
Setting the Standard
Ch.IV(4)(C) Aggravated Negligence (CB 197)
• Willful, Wanton and Reckless Conduct
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89
Fixed Rule
vs.
Predictability
(Justice)
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General Standard
(Particular Facts)
Flexibility
(Justice)
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90
15
Rules of Law
Rules of Law
TENSION
Predictability
vs. Flexibility
(Holmes)
Justice
(citizens need to
know what law
requires)
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TENSION – Setting the Particular Standard
(Cardozo)
Court’s Role vs. Jury’s Role
Justice
(in the particular
circumstances)
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91
Rules of Law
Pokora Case (U.S.S. Ct. 1934)
The “featureless generality” of the reasonable
person standard - that defendants should use the
care of the prudent person in particular
circumstances . . . should be continually giving way
to the specific one – that defendant use this or that
precaution in these or those circumstances.
In theory tort liability arises from the failure to
comply with fixed standards of external conduct
which everyone is presumed to know. It ought to be
possible sooner or later to formulate these standards.
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93
Rules of Law
Pokora Case (U.S.S. Ct. 1934)
Issue:
case by case adjudication
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92
Setting the particular Standard - Holmes: [B&O RR.]
“To do so should largely be the
business of the courts.”
[The implication: trial courts should
be more active in directing verdicts.]
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94
Setting the Particular Standard - Cardozo’s Answer:
Contributory Negligence?
(Precedent = B&O RR. vs. Goodman [USSCT – Holmes])
Held: Plaintiff NOT Negligent Under the
Particular Circumstances.
Professor McNichols
fixed rules
Rules of Law
Pokora Case (U.S.S. Ct. 1934)
Rule: Stop, Look, Listen & Get Out if Not Sure.
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(Cardozo)
Rules of Law
Pokora Case (U.S.S. Ct. 1934)
Setting the Particular Standard - Holmes: [B&O RR.]
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(Holmes)
95
Courts must be cautious in framing standards of
behavior that amount to rules of law – especially
when there is no background of experience for the
particular circumstances so that behavior becomes
customary. In this case: without the guide of
custom, “what is suitable for the traveler caught in
this mesh, where the ordinary safeguards fail him is
for the judgment of the jury.”
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96
16
Rules of Law
Pokora Case (U.S.S. Ct. 1934)
Setting the Particular Standard - Cardozo’s Answer:
* To require one to get out of a vehicle is:
* uncommon (as experience shows)
+
* here it would be too dangerous
[Implication: trial courts should be reluctant to direct
verdicts as often as Holmes advocates]
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17