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Chapter 9- Professionals

Chapter 9- Professionals

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Published by Ghost1L

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Published by: Ghost1L on Oct 28, 2009
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11/19/2012

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Osborn v. Irwin Memorial Blood Bank FACTS:
The plaintiff at the age of three weeks contracted the AIDS virus from a bloodtransfusion in the course of heart surgery supplied by the defendant.
ISSUE:
Whether the defendant should be held negligent when he fails to administered the anti-HBc in regards to AIDS concern to check for blood safety before transfusion when other  professionals within its industry customs are not doing the test.
RULE:
Professional prudence is defined as actual or accepted practice within a profession,rather than theories about what should have been done. This is implicit in the definition of thestandard of care as skills and knowledge ordinarily possessed and exercised in a profession
APPLICATION:
Here, the industry standard for checking blood in regards to the AIDS concerndoes not include conducting the anti-HBc testing. Professional reasonable care is held to thatthat is accepted or common within the profession practices at the time While it reasonablestandard is the due care in which everyone is held too, there is an exception when a reasonable person lacks the knowledge necessary to conclude whether the defendant had acted negligently.In those cases expert testimonies are necessary required to show standard of care within that profession thereby making it conclusive.
CONCLUSION:
Therefore, no evidence is presented that the defendant was not exercising allreasonable care allowed by the industry at that time or that defendant negligently failed to perform tests that other blood banks was doing. N.o.v should be granted to the defendant b/cthere was no substantial evidence that the failure to conduct the tests was not accepted practicefor blood banks in January and February of 1983.
 
Nowatske v. OsterlohFACTS:
The plaintiff noticed he had blurred vision in his right eye and approached thedefendant, a retina specialist, who diagnosed him as having a retinal detachment. Prior to thesurgery, plaintiff signed a consent form explaining the risk and possible complications involvedin the proposed treatment. Post-surgery, there was prove of swelling in the eye and the partiesargued about the success of the surgery. The swelling subsided and still was unable to see in hisright eye. The plaintiff was later informed by the defendant that he would no longer be permanently blind in the right eye.The jury found that the defendant wasn’t negligent and the circuit court entered a judgment dismissing the case. Plaintiff appealed….
ISSUE:
Whether the defendant has failed to use reasonable care, skills, judgment which isexercised by others who are similarly situated or under similar circumstances within the profession when he performed the eye surgery on the plaintiff.
RULE:
Physicians are held to a standard of reasonable care, skill and judgment customary practice of the profession at the time and a reasonably competent practitioner is the one whokeep abreast of advances in medical knowledge.
APPLICATION:
Here, exercising due care is refers to as a reasonably practitioner who keepsup with advances in medical knowledge. In this case, the defendant used a recognized methodcustomary to the industry at the time of operation whether the operation was successful or not isnot relevant. A reasonably prudent doctor keeps up reasonably with knowledge, and doctorsmust adapt to upgrading medical technology. The standard of customary care continues toincrease.
 
As long as the defendant’s conduct conform to the standard of care noted within the profession as the degree of care, skill, judgment that an average specialist within the same ounder similar circumstances would have acted. And, just b/c the defendant chose a recognizedtreatment acceptable at the time does not shield them from negligent if it reveals that they hadfailed to exercise due care necessary in doing the operation
CONCLUSION:
Therefore, case remanded back to the court of appeals for further processing.
 
Rossell v. Volkswagen of AmericaFACTS:
The plaintiff was driving a beetle or bug with her 11 months old baby in the passenger seat. While driving, she fell asleep and was woken up when she hit a sign and attempted tocorrect the path but the car flipped over in which she was unconscious for 7 hrs. Upon wakingup, she noticed the battery had broken during the crash and the fluid had dripped on the babycausing severe burned injuryThe jury found for the plaintiff and awarded damages in the sum of $1,500,000. Thedefendant appealed for a motion n.o.v but was denied by the trial judge. Defendant appealed andthe court of appeal held that the plaintiff had failed to establish a prima facie case of negligenceand that the trial court had erred in denying the defendant motion for judgment n.o.v.
ISSUE:
Whether the defendant should have foreseen the unreasonable risk of harm created when battery is still left inside the passenger compartment when there are alternatives design wereavailable and practical
RULE:
Special group will be allowed to create their own standards of reasonably prudentconduct only when the nature of the group and its special relationship with its client assuresociety that those standards will be set with the primary regards to protection of the public rather than to such considerations as increase profitability.
APPLICATION:
Here, the defendants are not professional b/c there exist no specialrelationship between the public and the defendant that raises concern about the welfare of their clients as the professions permits and require of their practitioner. A professional standard of care does not govern the car industry. They are still held to the reasonable standard of care stillcommonly susceptible to interpretation by the jury. Industry custom is admissible, so is experttestimonies but both do not need explicitly expert testimony stating the standard of care and thedefendant’s deviation from that standard. On the issue of the plaintiff establishing a prima faciecase, expert testimonies suggest there are majority of cars with batteries located outside the passenger compartment, in the luggage compartment as well as in the engine compartment. So,there are plausible, practical and alternative designs that could have been utilizes by thedefendant to prevent risk of harm that is likely to occur from placing the battery in the passenger’s compartment.
CONCLUSION:
Therefore, issues of defective design are not malpractice issues – automobilemanufacturers do not fit into this category and the trial court did not erred in denying the judgment n.o.v.

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