Midterm Question 1 Issue Outline
Torts
Spring 2006
Prof. Carr
Midterm Question 1 Issue Outline
J & L v. Jill: Negligence (DBCD elements) Professional/specialist standard of care; expert testimony req. to prove duty and breach. What damage if child born not conforming to contract for AI? Wrongful birth C/A. Jill sue assistant for contribution? Assistant’s duty much less: non licensed, new on job, Jill the specialist/employer responsible for meeting standard of care for patient. Jill likely to be found proximate cause of child’s birth defects? Subsequent neg medical care usually foreseeable but here chain of causation possibly interrupted by hospital neg (slippery floor) and 2 other MD’s, both possible joint tortfeasors with higher duty also. That Jill’s attempted battery was willfully wrong/criminal offset by fact Liz did not get the candy; one additional causal level removed between Jill’s wrongful act and harm to infant. 5 points.
J v. Jill Battery. (define) Intent was to give drug to L. Transferred intent doctrine applies to orig 5 intentional torts. Harm resulted. An intentional tort, so likely that damages for all harm J suffered subsequently would not be superceded by foreseeable later acts of common neg by ambulance, hosp and MDs. 4 points.
J v. Ambulance Neg Duty to meet standard of care arguably breached; expert testimony necessary to prove. 3 points.
J v. Ambulance Battery (no consent) defense of emergency; consent implied in unconscious patient for necessary care. 2 points
L v. Hospital Neg Failure to prevent or warn of dangerous condition likely to cause injury (slippery floor). Old licensee/invitee standard wanes; duty now a general standard of reasonable care toward those on property w/ consent. 3 points.
L & J v. Hospital Neg Injury to child due to breach by employee? treating MDs giving drugs and x rays causing general damages of increased child medical costs (and see discussion of Neg per se, below).. Indivisible injury to child by joint tortfeasors. 3 points.
Infant girl v. Hospital Neg Physician/employees? acted without due care in administering drug and x rays which may have caused birth defects: Possible particular "special" damages in addition to increased cost of medical care (Neg per se? see below) 6 points.
L & J v. MDs Neg Viol of professional standard of care in failing to ascertain L ’s pregnancy or unable to reasonably do so because of her "frantic" state? Q of fact for jury. Violation of statute showing neg per se? Discuss doctrine. Did MD’s give drug "knowingly"? Exception for resident in that act was to save life of mother. Radiologist less protected. 7 points.