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¡PROF.  CRAIG CHARLES BELES
¡Seattle, Washington, USA

01/04/10
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More Proof  Than: An Accident Happened That Caused Pl Injury.
Normally Circumstantial, Rather Than Direct, Evidence
RES IPSA LOQUITUR -  “The Thing Speaks For Itself”
Formal Doctrine of Circumstantial Evidence
1. Pl was probably injured as a result of negligence,
and
2. It was probably D’s negligence

01/04/10
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JUDGE  DECIDES  WHETHER  R.I.L.  APPLIES  TO  CASE
R.I.L  CREATES “PERMISSABLE  INFERENCE” OF:
DUTY,  BREACH  and  D’s  CAUSATION
CONTRAST:
REBUTTABLE  PRESUMPTION
and
IRREBUTABLE PRESUMPTION

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ADOPTION  OF  A  STATUTE  AS  THE   STANDARD  OF  CARE
PREREQUISITES:
PL  MUST  BE  IN  CLASS  OF  PROTECTED  PERSONS
AND
PL  MUST  SUFFER  TYPE  OF  HARM  INTENDED  TO  BE  PREVENTED
THE  RESULT  OF  ADOPTION  OF  STATUTE  BY COURT?
MAJ. RULE – CONCLUSIVE  PROOF  OF  DUTY &  BREACH

01/04/10
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JUDGE  DECIDES  WHETHER  N.P.S.  APPLIES  TO  CASE
N.P.S.  CREATES  “REBUTTABLE  PRESUMPTION”  OF
DUTY  &  BREACH
Martin v. Herzog  (NY 1920)
IF  JURY  FINDS  VIOLATION,  THEN  ONLY  NEEDS  TO  DETERMINE:
CAUSE  IN  FACT,  PROXIMATE  CAUSE  AND  DAMAGES
CAN  BE  REBUTTED  WITH  STRONG  PROOF  OF  “EXCUSE”

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MEDICAL MALPRACTICE
CUSTOM  IS  DETERMINATIVE
CUSTOM  &  DEVIATION  MUST  BE  ESTABLISHED  BY  EXPERT
D  FAILED  TO  ACT  WITH  THE  MINIMUM  COMPETENCE EXERCISED  BY  OTHER  DOCTORS  IN  GOOD
STANDING  (IN
THE  SAME  OR  SIMILAR  LOCALITY)
RARELY,  D’s  NEGLIGENCE  IS  SO  APPARENT,  EXPERT OPINION  IS  NOT  REQUIRED

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FAILURE  OF  DOCTOR  TO  INFORM  THE  PATIENT OF  THE  “MATERIAL  RISKS”  OF  THE  TREATMENT WAS
A  BREACH  OF  DUTY  THAT  CAUSED  PATIENT  HARM,
i.e.,  If  Patient  Had  Known  of Risk,  He  Would  Have  Taken  a Different  Course
WHO  DETERMINES  MATERIALITY?   “PATIENT  RULE”
Scott v. Bradford (OK  1979).  THUS, NO EXPERTS
WHAT  ARE  MATERIAL  RISKS?  RISKS  THAT  WOULD LIKELY  AFFECT  A  PATIENT’S  DECISION.

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SUMMARY
PL MUST PROVE:
1) HER DOCTOR FAILED TO DISCLOSE MATERIAL FACT
and
2) HAD SHE KNOWN OF FACT ,SHE  WOULD HAVE REJECTED PROCEDURE
and
3) THE UNDISCLOSED RISK CAUSED HER HARM

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“AN  ATTORNEY  WHO  ACTS  IN  GOOD  FAITH  AND  IN  AN  HONEST  BELIEF  THAT HIS  ADVICE  AND
ACTS  ARE  WELL  FOUNDED  AND  IN  THE  BEST  INTERESTS  OF HIS  CLIENT,  IS  NOT  ANSWERABLE  FOR
A  MERE  ERROR  IN  JUDGMENT.”
Hodges v. Carter,  (NC 1954)
BUT  MUST  EXERCISE  THE  SKILL  &  DILIGENCE  OF  AN  ORDINARY PRUDENT  ATTORNEY  -  THUS, PL
MUST  HAVE  EXPERT  TESTIMONY
BIG  HURDLE  FOR  PL?
MUST  PROVE  TWO  CASES

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GENERAL RULE:  ONE  ENGAGED  IN  RISK-PRODUCING ACTIVITY  OWES  A  DUTY  TO  AVOID  CAUSING
FORESEEABLE PERSONAL  INJURIES  TO  FORESEEABLE  PLAINTIFFS
Palsgraf  v.  Long  Island  R.R. Co.  (NY 1928)
HOWEVER – THERE  ARE  OTHER  CIRCUMSTANCES  WHERE THERE  IS  NO  DUTY  OR  A  LIMITED  DUTY.
FAILURE  TO  ACT  a/k/a  NONFEASANCE
E.g. NO  DUTY  TO  RESCUE
L. S.  Ayres  &  Co.  v.  Hicks  (Ind 1942)

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1)D  CREATED  NEED  TO  RESCUE
2)
2)SPECIAL  RELATIONSHIPS
COMMON CARRIER-PASSENGER
INNKEEPER-GUEST
EMPLOYER-EMPLOYEE
SCHOOL – STUDENT
BUSINESS – CUSTOMER
1)UNDERTAKING  TO  ACT  &  RELIANCE
2)
2)CONTRACT

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GENERAL RULE:  NO DUTY ABSENT:
1) SPECIAL RELATIONSHIP, and
2) KNOWLEDGE OF NEED TO CONTROL
Parent & Child With Known Dangerous Propensity
Therapist & Patient Who Said He Will Hurt Someone
Suppliers of Liquor
Negligent Entrustment