Osborn v.

Irwin Memorial Blood Bank FACTS: The plaintiff at the age of three weeks contracted the AIDS virus from a blood transfusion in the course of heart surgery supplied by the defendant. ISSUE: Whether the defendant should be held negligent when he fails to administered the antiHBc 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 the standard 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 concern does not include conducting the anti-HBc testing. Professional reasonable care is held to that that is accepted or common within the profession practices at the time While it reasonable standard 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 all reasonable 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/c there was no substantial evidence that the failure to conduct the tests was not accepted practice for blood banks in January and February of 1983.

Nowatske v. Osterloh FACTS: The plaintiff noticed he had blurred vision in his right eye and approached the defendant, a retina specialist, who diagnosed him as having a retinal detachment. Prior to the surgery, plaintiff signed a consent form explaining the risk and possible complications involved in the proposed treatment. Post-surgery, there was prove of swelling in the eye and the parties argued about the success of the surgery. The swelling subsided and still was unable to see in his right 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 is exercised 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 who keep abreast of advances in medical knowledge.

APPLICATION: Here, exercising due care is refers to as a reasonably practitioner who keeps up with advances in medical knowledge. In this case, the defendant used a recognized method customary to the industry at the time of operation whether the operation was successful or not is not relevant. A reasonably prudent doctor keeps up reasonably with knowledge, and doctors must adapt to upgrading medical technology. The standard of customary care continues to increase. 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 or under similar circumstances would have acted. And, just b/c the defendant chose a recognized treatment acceptable at the time does not shield them from negligent if it reveals that they had failed 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 America FACTS: 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 to correct the path but the car flipped over in which she was unconscious for 7 hrs. Upon waking up, she noticed the battery had broken during the crash and the fluid had dripped on the baby causing severe burned injury The jury found for the plaintiff and awarded damages in the sum of $1,500,000. The defendant appealed for a motion n.o.v but was denied by the trial judge. Defendant appealed and the court of appeal held that the plaintiff had failed to establish a prima facie case of negligence and 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 were available and practical RULE: Special group will be allowed to create their own standards of reasonably prudent conduct only when the nature of the group and its special relationship with its client assure society 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 special relationship 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 still commonly susceptible to interpretation by the jury. Industry custom is admissible, so is expert testimonies but both do not need explicitly expert testimony stating the standard of care and the defendant’s deviation from that standard. On the issue of the plaintiff establishing a prima facie case, 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 the defendant 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 – automobile manufacturers do not fit into this category and the trial court did not erred in denying the judgment n.o.v.

Vergara v. Doan FACTS: The defendant was negligence during the delivery of the plaintiff’s son causing him severe and permanent injuries. The jury returned verdict for the defendant and plaintiff appealed urging the abandonment of the modified locality rule ISSUE: Whether the defendant acted to a reasonable degree of care, skill and judgment exercised by an ordinarily careful, skillful, and prudent physician at the time of delivery the baby and in similar localities and whether the standard of care comports with society standards considering the advances in the general public RULE: Physician must exercise that degree of care, skill, and proficient exercised by reasonably careful, skillful, and prudent practitioners in the same class to which he belongs, acting under same or similar circumstances.

APPLICATION: Here, the strict locality rule creates some drawbacks in its shortfalls regarding the availability of doctors to testify to the standard of care and the standard the rule has created due to scarcity of doctors, the rule have seen to create a low standard of care b/c small doctors are likely to operate on the same standard of care. The modified locality rule was established from the strict locality rule b/c of the disparity between doctors in rural areas and doctors in large cities. Several difficulties such as traveling, medical opportunities, facilities, and training were substantial gapped between rural and urban doctors that to hold the rural doctors to the same standard as the urban doctors would have create unfair treatment. Holding the practitioners is small communities to their peers operating in the same localities was the possible solution but now than the advances in transportation, communication, and medical education has diminished the disparity, it’s only fair that the doctors in rural communities be held to the same standards as their peers in general. And, with the availability of insurance opens up the constraints on customer by allowing them to choose their own doctors or hospital reducing their financial constraints. Locality standard becomes a factor to considered among others such as; whether the doctor acted reasonably, advances in the profession, availability of facilities, and whether the doctor is a specialist or general practitioner.

CONCLUSION: Therefore, the focusing on different standards for different communities is longer necessary. The disparity that calls for such division has been diminished and doctors in rural and urban communities can now be held to the same standards. The modified locality rule won’t have changed the outcome of this particular case regarding the negligence of the defendant. Case affirmed.

Larcey v. Rothman FACTS: The defendant performed a breast biopsy and six weeks later the plaintiff developed a right arm and hand lymphatic, a swelling caused by inadequate drainage in the lymphatic system. The condition resulted in the excision of the lymph nodes. Initially the plaintiff has consented to the operative procedure but the defendant had been failed to notify her of all possible risk associated with the operation even though the risk might be too rare. The jury responded that the defendant had not been negligent in providing the plaintiff with sufficient information so that she could give an informed consent to the operation procedure. The appellate court affirmed the decision. ISSUE: Whether the defendant had adequately informed the plaintiff of the risks associated with performing the biopsy operation regardless of the rarity of the risk likely to occur. RULE: The proper standard is that of a prudent patient that focuses on what the physician should disclose to a reasonable patient in order that the patient might make an informed decision. A patient has his/her own right of self-determination.

APPLICATION: Here, the defendant is required to inform the plaintiff of all possible risks associated with the operation in order for the plaintiff to make an informed decision. In this case, the defendant failed to inform her that lymph-edema is a condition likely to occur from the operation b/c the defendant assumed the rarity of the condition makes it undiscussible. The determination of whether is the risk is materiality is a subjective one to the patient as far as what the patient considered to be in his/her own interest in deciding whether to forgo the proposed operation. The plaintiff still have to prove causation that the defendant failed to comply with the applicable standard for disclosure and that such failed disclosure of the risk was the proximate cause of his/her injuries. In that sense, the prudent patient standard becomes an objective standard; whether a prudent person in the patient’s position would have decide differently if adequately informed of all known risk associated with the operation.

CONCLUSION: Therefore, the judgment of the appellate court is reversed

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