Legal Analysis: Malpractice & Product Liability Claims against Doctors & Pharma Co., Exams of Law of Torts

Download Legal Analysis: Malpractice & Product Liability Claims against Doctors & Pharma Co. and more Exams Law of Torts in PDF only on Docsity! TORTS II PROFESSOR DEWOLF SPRING 2009 May 7, 2009 FINAL EXAM SAMPLE ANSWER MULTIPLE CHOICE 1. (A) is incorrect, because of the doctrine of transferred intent. (B) is incorrect, because Susan could still suffer damage to her dignity. (C) is incorrect, because it is the intent to do the act that matters; whether or not one is aware of the risk to another person is irrelevant. (D) is therefore the correct answer. 2. (A) is correct, because Sam did indeed subject them to confinement, and if they suffered damage they might have a claim. (B) is incorrect, because physical harm is not required in order for false imprisonment to be actionable. (C) is incorrect, because it applies to persons suspected of shoplifting, and that isn't the case here. (D) is incorrect; it is the standard for civil rights violations. 3. (A) is incorrect, because being a public figure is not a requirement to recover for defamation; (B) is wrong for a similar reason; (C) is correct, because truth is a defense to defamation; (D) is incorrect because a private person doesn't need to show actual malice. (4) (A) is incorrect, because there is nothing in the facts that suggests that Sam's use of steroids would be newsworthy or a matter of public concern; (B) is incorrect because truth is not a defense to public disclosure of private facts; (C) is correct, because the wrongful access to information is a basis for the tort; (D) is incorrect because no malice need be shown for the tort of privacy. QUESTION 1 I would consider two types of claims on behalf of Malynda and Laramie (M&L): (1) Malpractice claim(s) against the doctors (Mackel and Bodelson) and (2) a product liability claim against Parke, Davis (PD). 1. Malpractice Claims In order to establish liability in a malpractice case, the plaintiff must show either (1) the doctor breached the standard of care for that type of procedure or (2) the doctor failed to obtain the patient's informed consent. 1. Professional Negligence. A doctor (or other health care provider)’s breach of the standard of care must be shown by qualified expert testimony. Malynda has an expert, Dr. Nygel, but the facts state that he practices in the neighboring state of Evergreen. Unless Dr. Nygel can show that he is familiar with the standard of care in Linden, his testimony may be excluded. Assuming his testimony is admissible, it will likely be met with testimony on behalf of the defendants showing that their treatment of M&L was not negligent, and that Laramie's problems were an unavoidable complication or resulted from causes other than medical care. It will be a jury question, and many malpractice claims end with a defense verdict. 2. Lack of informed consent. Alternatively, M&L could argue that she didn't consent to this procedure. Presumably the hospital had Malynda sign some kind of consent form, but she could The facts for this question were based on Davila v. Bodelson, 103 N.M. 243, 704 P.2d 1119 (1985), in which the jury returned a verdict for both the doctors and the drug manufacturer, and the appellate court affirmed. DeWolf, Torts II, Spring 2009, Final Sample Answer Page 2 argue that she was not given sufficient information about the risks of a Pitocin-induced delivery and alternatives to make Malynda's consent informed. Informed consent requires an explanation of the material risks, along with a disclosure of alternative treatments. M&L could claim that they didn't get a complete explanation, and therefore didn't give truly informed consent. This isn't a very strong argument, but it may supplement the negligence claim. 2. Product Liability Claim v. PD A product manufacturer is liable for injuries caused by a defect in a product that they placed in the stream of commerce. Dr. Nygel believes that Pitocin is defective in that it doesn't contain adequate warnings concerning the risks to the baby when it is used to stimulate uterine contractions. 1 The facts do not suggest a manufacturing defect or a design defect, but according to Dr. Nygel the drug isn't sold with adequate warnings. In order to succeed on a failure to warn case, we would in effect have to show that a reasonable person would have enhanced the warnings concerning the risk to the baby from Pitocin. 2 Moreover, we have to show that the doctor, with a better warning, would have behaved differently. That may be a difficult burden to sustain. Like the medical malpractice case, this will be a question for the jury. Comparative Fault Issues To begin with, there is no evidence of any contributory fault on the part of the mother, and certainly none on behalf of the baby. Although there are multiple tortfeasors, and ordinarily that would raise questions about the application of joint and several liability, I don't think they would be particularly important here. Neither doctor (or, for that matter, the hospital at which the birth 1. An issue we didn't discuss in class, but which would be relevant in the real world, is the learned intermediary doctrine. Pursuant to this doctrine, a manufacturer of prescription drugs is not required to warn the patient directly, but only the doctor who prescribes the drug, on the theory that the doctor, not the patient, is most qualified to determine whether the risks posed by the drug outweigh its benefits. In turn, the doctor is subject to the requirement of informed consent, so that material risks must be disclosed by the doctor to the patient. The only effect of the learned intermediary doctrine is to alleviate the burden of the manufacturer to warn the patient directly (this rule is subject to exceptions, such as the use of birth control pills, where the patient may decide to use the drug--or refill the prescription--without meaningful consultation with a physician. For a general discussion, see Perez v. Wyeth Laboratories, Inc., _______________________________ 2. There is really no advantage to be gained from arguing strict liability, since there is no new information about the risk of the product since the time it was administered to the patient. In the case of drugs like DES, where there we now know about risks that were unknown at the time of manufacture and sale, there is an important policy question about whether to apply this after- acquired knowledge to judge that the product was defective, even though the manufacturer may not have been negligent in selling it. Some jurisdictions, like California (Brown v. Superior Court), have rejected the strict liability standard for prescription drugs, but that controversy is irrelevant to this discussion, since the same question -- how would a reasonable person warn about the risks of using Pitocin -- will be asked regardless of whether it is styled as "strict liability" or a true negligence test.