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Defamation
UMKC School of Law
Levit, Nancy

Defamation, Privacy, Emotional, and Relational Torts Outline

Duties of Medical and Other Professionals
1. Professional malpractice standard is different than regular negligence standard of a reasonable person
2. Questions to ask
a. What is the standard of practice?
b. Was there a departure from the standard of practice?
3. Standards
a. General standard – doctor has to conform to the customary standard of care in the relevant medical community
i. Customary standard of care – that degree of skill, care, and proficiency exercised by reasonably careful, prudent, and skillful practitioners acting under the same or similar circumstances
b. Relevant medical community
i. Specialist – community of that specialty, national in scope
ii. General practitioner
1. Old rule – locality, only used in a few states
a. Holmes v. Elliot – Strict requirement saying only a local physician or one who knows what the local standard is can testify
2. Modern rules
a. Same or similar community – Kansas
i. Favors defendants
b. National standard – Missouri (Vergara v. Doan)
i. Physician has to exercise that degree of skill or care exercised by reasonably skillful practitioners exercising under the same or similar circumstances
ii. Favors plaintiffs
c. Expert testimony required to establish a violation of the standard of care
i. Missouri requires affidavit to file
ii. 3 exceptions to expert testimony requirement
1. Common knowledge or gross negligence – medical conduct is so well understood it could be evaluated by jurors without expert testimony
2. Hospital regulations – meet standards required by hospital licensing and accreditation standards
3. Drug rules – packet of information that accompanies drugs can establish the standard
d. Various communities
i. Chiropractors – Kirkman v. Hintz
1. Some courts hold chiropractors to a reasonable chiropractor standard
2. Other courts find special obligations but do not mention if reasonable standard or professional obligation
3. Some courts hold chiropractors to the professional standard of customary chiropractic care
ii. Nurses – similar treatment to chiropractors
1. Split favors profession (national) standard of care
a. Eckhardt v. Barne’s Hospital
b. Missouri
iii. Hospitals
1. Care commensurate with the needs of the patient
2. More of a national standard because of federal regulations of hospitals
iv. Pharmacists
1. Professional standard
2. Historic rule in most states is pharmacists do not owe a duty to warn about misprescriptions due to learned intermediary doctrine – not set-up conflict between physician and pharmacist or interrupt doctor-patient relationship
v. Architects, engineers, and accountants
1. Subject to a professional standard
vi. Non-medical practitioner
1. Complimentary and alternative medicine (CAM) can be sued for failure to refer patient to a conventional medical physician
2. Conventional doctor can be sued for negligent referral to CAM
3. Either doctor can be sued for informed consent
vii. Lawyers
1. Reasonable range of judgment for many things done in law
2. Difficult to show causation
a. Plaintiff (lawyer’s client) has to show that but for the attorney’s negligence the client would have been successful in the underlying suit and that the attorney’s conduct was the proximate cause of
viii. Most courts refuse to recognize a cause of action for educational malpractice – Ross v. Crayton
1. Difficult to show causation
2. Collaborative practice
e. Not all injuries in a medical setting are medical malpractice where expert testimony or application of a professional standard is needed
i. Could be a slip and fall where expert testimony is not needed
f. Plaintiff cannot use a contract theory for medical malpractice – Hall v. Rotino
g. How to recognize a profession
i. Additional specialized education or training
ii. Professional credentialing/licensure – board certification
iii. Professional regulation
iv. Specialized skill or knowledge
1. Minor element because of socioeconomic bias
h. Do not rely on treatises plus self-incrimination – Smith v. Knowles
i. Expert on stand can use information from book as basis of background knowledge but a treatise cannot come in as substantive evidence to establish the standard of care because you cannot cross-examine a book – can use to impeach
4. Good Samaritan
a. Fear of tort liability will deter medical professionals from giving medical care during emergency circumstances – Velazquez v. Jiminez
i. MO 537.037 applies to physicians, EMTs, surgeons
ii. Exemption from liability unless someone is grossly, wantonly, or willfully negligent
iii. Do not require people to render help
iv. Limitations
1. Services must be given gratuitously
2. Only partial immunity
b. If there is a preexisting duty then you cannot claim Good Samaritan immunity because there is already an obligation of care – HIRPA v. IHC Hospitals
5. Res ipsa loquitur – State v. Lourdes
a. Elements
i. Accident would not normally occur without negligence
ii. Plaintiff needs to exclude his own fault and other causes
iii. Plaintiff has to bring fault home to the defendant
b. This accident would not have happened but for negligence
i. Common knowledge basis – jury is allowed to conclude on its own common knowledge that negligence is the most likely explanation
ii. Expert opinion – easier to get an expert to say the injury patient received ordinarily would not occur without negligence
c. Ybarra v. Spangard
i. Applied RIL against multiple defendants
1. Usually not applied against multiple defendants
ii. Held all defendants collectively responsible unless they were affirmatively able to show they were not at fault
6. Abandonment
a. Patient may terminate doctor-patient relationship, but a doctor nor a hospital can abandon a patient before treatment is completed
b. Physicians have a duty to give reasonable notice and make arrangements for transfer of care
c. When abandonment is not obvious patient probably needs expert testimony to say this is below the standard of care
7. Informed consent – people should be able to make their own choices, promote individual autonomy
a. What is the standard for disclosure?
i. Doctor owes the obligation to disclose material information that a reasonable patient would want to know to make a decision – Harnish (majority)
ii. Doctor only has to disclose what is customary to disclose among practitioners in that specialty (Wooley- older rule but still used in Missouri)
b. What is the causation test?
i. Unrevealed risk has to occur
ii. Objective – neither the plaintiff nor a reasonable person in the plaintiff’s situation would have undergone the procedure had the information been communicated
c. Battery can occur in medical procedures – Montgomery v. Bazaz-Sehgal
d. Incompetent patients
i. Even a mentally ill person or child can have capacity for choice on some issues so there is the possibility for informed consent
ii. A spouse or parents can be a substitute decision-maker

o see if relationship between plaintiff and defendant
b. Look at timeframe
c. Look to see if special characteristics of plaintiff – child or mentally incompetent
3. Exceptions
a. Newton – unlit excavation
i. Affirmative action done badly – misfeasance
ii. Logical relationship between digging hole and failing to light excavation
1. Contractor created the danger by putting a hole in the road = misfeasance
2. Increased the risk
b. Acts that cause harm or a risk of harm
i. South v. National Railroad
1. Plaintiff injured in train/truck crash
2. Engineer refuses to let people help the truck driver
3. Court found an obligation saying that if you cause harm that triggers a rescue obligation to prevent further harm
ii. Yania v. Bigan
1. Emphasized self-responsibility (you are responsible for your own actions) – typically when people commit suicide it is their responsibility and not the responsibility of others to prevent that
2. No duty to rescue without creating a risk of harm – taunting not enough
3. No duty to help a stranger – except in 4 states
c. Undertaking rescue
i. Wakulich v. Mraz
1. Two brothers encouraged girl to drink entire bottle of alcohol
2. The brothers did not seek medical attention
3. The brothers undertake a duty of care so it triggers the duty to care nonnegligently
a. Got her a pillow, changed her shirt, put her on a couch
4. Undertaking a rescue can create a duty to do it nonnegligently
ii. Krieg v. Massey
1. No liability because she did not make the situation any worse nor did she have a duty to take the gun away
d. Restatement 324 – taking charge
i. If you have a defendant who takes charge of someone else who is helpless then there can be liability if you fail to use reasonable care or you leave that other person in a worse position than when you took charge
1. Cases are split
a. Some courts insist on proof that there was other rescue possible – if by beginning rescue you prevented someone else from completing rescue
i. Modern trend
b. Some courts say this could have prevented rescue and therefore you are liable – even without evidence of anyone else being there
ii. Farwell v. Keaton
1. Evidence that prompt medical attention would have avoided death
2. Once having taken charge the defendant was obligated to exercise reasonable care
a. Beginning of an action establishes a duty to continue and do it right
i. Siegrist started to help and had a duty to finish
3. Worse off – another rescuer may have come along if he hadn’t helped because in public place but he put him in a car (private)
4. Special relationship with the victim may create the obligation to rescue – social companions
a. Most courts will not find social companions as a special relationship
b. Special relationship creates a duty to act
e. Special relationships