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Rutgers University, Newark School of Law
Bell, Bernard W.

I. Vicarious Liability (public ordering)
a. Is the agent a servant?
i. An employee is w/in the scope of employment if: (1) conduct is of the
general kind that employee is hired to perform; or (2) conduct occurs
w/in temporal and spatial boundaries of employment; or (3) conduct is
motivated by purpose of serving employer’s interests. Christensen v
Swensen Swensen works for Burns and one day at work, takes a 15 min unscheduled
break and goes to get soup from sole restaurant nearby and crashed into ppl on way
back. Ps sues Burns under respondeat superior.
b. If an independent contractor, then no V/L for principal UNLESS
i. Apparent Authority (private ordering): An employer may be held
vicariously liable for an independent k’er if (1) there has been a
representation by principal; (2) a 3rd party relies on that
representation; & (3) 3rd party changes in position based on reliance
on the representation. Roessler v Novak Hospital has apparent authority
over indie practitioner, who botched up guy’s surgery. Here, (1) the doctor’s practice is
w/in the hospital; & (2) the dr’s practice does exclusive radiological work at the hospital.
ii. Non-Delegable Duties (public ordering)1: In situations where the principal has
the indie K’or perform duties for her, the principal is still liable for the negligence of the
indie K’or.
1 Public ordering: source of rights and obligations arise from some govt agency, and not from private sources. e.g. obligation not
to hire based on race (derived from congressional statute). duty of drs to provide non-negligent care (via from torts). Vicarious
Direct Liability
Unintentional Torts
I. MEDICAL MALPRACTICE – Negligence (applies to doctors, EMT)
a. fail to EXERCISE APPROPRIATE SKILL – Patient has an interest in being free from
i. Duty to provide competent care so as not to inflict unnecessary harm on the patient.
ii. Breach
1. Accepted Medical Practice (The Professional Standard) – Who can
qualify as an expert?
a. School of Thought – Rst §299A(f) Actor is to be judged by pro standards of
group to which she belongs. At least minimum skill in diagnosis and
knowledge in possible methods of treatment.
b. National or Local Standard – Rst §299A(g) Dr is under duty to use care
and skills expected of a reasonably competent practitioner in
the same class, acting in similar circumstances. Sheeley v
Memorial Hospital D screws up P’s epistomy. P’s expert testimony is
excluded based on “similar locality rule.” P’s expert is a OB/GYN who D
claims is overqualified since he does not possess the same skill/education as a
2nd yr family practice resident performing OB in RI. Treatment has to be
administered in “reasonable manner,” and any dr familiar w/ procedure is
competent to testify on “reasonable standard of care.” Look at dr’s: resources,
specific area of practice, and time practicing. board certification in a specialty is
perfect. b/c of developments in med education & thus more nationally
uniform, a national standard is more appropriate.
c. Exceptions to expert testimony (in order to establish D’s failure to meet pro
i. common knowledge of laymen can discern negligence of D. e.g.
clamp in body after operation.
ii. dr’s failure to follow specific instructions on a pharmaceutical.
2. Overriding Accepted Practice
a. When a particular type of medical attention is so imperative
(yet, a diagnosis would be simple & harmless & inexpensive &
does not require a judgment & no doubt that if test given,
problem can be detected) even though it is not a professional
custom, the court will set the reasonable medical standard.
Helling 32 yr old Woman loses eyesight b/c of glaucoma, which could have
Liability: whether principal is liable for agent, depends on whether agent is indie K’or or servant. if servant, then principal is VL. if Indie Kor,
then princ is not VL. (Tort law)
Private ordering: source of rights & obligations is from private individuals agreeing among themselves. no particular obligation.
is usually by means of K, but is not implicit. w/in vic lib, Apparent Authority is private. based on concept that there is implicit a

. Problem: This standard is not Uniform, but it does allow the patient
to exercise her autonomy.
b. Professional Standard – What a professional would disclose. Problem:
Uniform standard, but it is dependant more on what the medical
establishment thinks.
3. Privileges to disclosing (Korman v Mallin)
2 Doe goes to hospital for tummy ache, wakes up day later & drs perform plastic surgery on face. Most ppl think he looks better.
Should he have c/a still? Yes. P has right to autonomy even though there is no c/a for lack of skill, etc.
a. therapeutic privilege: when discussion may have a detrimental effect on the
body or mind of P.
b. where P is unable to give consent b/c of insanity or infancy.
c. P specifically requests not to be told.
d. when the risk is known to P or is so obvious that P has constructive notice.
e. when relatively remote risks.
iii. Actual Cause
1. Problem: normally, chain of events doesn’t ask “what P would have done w/ more
info.” for e.g., if P weren’t told of material risk, but P would have done the surgery
either way, lack of disclosure would not be “actual cause” of negligence. There are
3 approaches/solutions:
a. subjective test – P has huge advantage here. thus, normally, Ps evidence is
best indication of what P would have done. BUT, P can lie.
b. objective test – would reasonable person proceeded w/ treatment?
problem: P may lose even though she really would have not made decision
based on add’l disclosure.
c. mixed – reasonable person has some characteristics of P (subjective) +
objective = e.g. high school basketball player who wouldn’t want further
damage to knees, so he can play in college.