Medical Malpractice and Product Liability: An Analysis of SOE's Liability and Damages, Exams of Law of Torts

Download Medical Malpractice and Product Liability: An Analysis of SOE's Liability and Damages and more Exams Law of Torts in PDF only on Docsity! 1. A student might logically think about a premises liability claim, but there is little in the facts to support one (unlike the medical malpractice claim). And in light of the low amount at which the state's liability is capped, speculating about the potential of a premises liability claim wouldn't be worthwhile. The facts for this question are based on Martinez v. Maruszczak, 123 Nev. 433, 168 P.3d 720 (2007), in which the Nevada Supreme Court found that the discretionary function exemption did not apply and the the damage restriction (then $50,000) was constitutional. TORTS PROFESSOR DEWOLF FALL 2009 December 12, 2009 FINAL EXAM SAMPLE ANSWER MULTIPLE CHOICE 1. (A) is incorrect, because this statement omits the requirement that Blinker intended to cause such fear; (B) is incorrect, because it doesn't require that Blinker actually desire to cause apprehension; substantial certainty is enough; (C) is correct; substantial certainty is treated as the equivalent of actual intent; (D) is incorrect, because there is no requirement of severe emotional distress. 2. (A) is correct, because it is the least incorrect of the statements; (B) is incorrect, because substantial certainty can constitute offense even if the defendant lacks the desire to cause the harm; (C) is incorrect, because a defendant's "instinctual" conduct can still be intentional; (D) is incorrect, because repetition of wrongful conduct doesn't make it any less actionable. 3. (A) is incorrect, because physical harm is not required; (B) is correct, because one has to be confined within fixed boundaries to claim false imprisonment; (C) is incorrect, for the reason stated in answer (B); and (D) is incorrect, because it doesn't state whether Blinker intended to confine her. 4. (A) is incorrect, because one can commit the tort of outrage by acting recklessly; (B) is correct, since the conduct could be considered reckless and outrageous; (C) is incorrect, because one need not be aware of the remarks when they are made, so long as they are ultimately communicated; (D) is incorrect, because truth is not a defense. ESSAYS QUESTION 1 I would analyze this medical malpractice claim1 in light of the sovereign immunity statute and the wrongful death statute. I. Medical malpractice claim The State of Evergreen (SOE) would be liable for medical malpractice if Dr. M (DM) either failed to follow the appropriate standard of care in that situation, or if he failed to secure informed consent. Negligent Procedure. A plaintiff in a medical malpractice action is required to provide expert testimony that the defendant didn't follow the standard of care for that particular specialty. In this it would be trauma surgery, and the plaintiff would have to find a qualified expert who could testify that the rupture of the artery was a result of negligence on DM's part. Even if there were such testimony, SOE would be entitled to provide experts of its own to contradict such testimony, and it is generally a fact question. Since the judge hears such cases without a jury (ERS § 41.031(2)), it would be for the judge to weigh the relative credibility of DeWolf, Torts, Fall 2009, Sample Answer Page 2 2. Because the language of the statute forbids awarding more than $75K "to or for the benefit of any claimant," it wouldn't matter if it were a single claim by Mrs. Perry or a combination of a wrongful death suit and a survival action, assuming that Mrs. Perry is the beneficiary of the survival action. competing witnesses. Nonetheless, in light of the fatal result from the surgery, it seems likely that a judge would find fault with the procedure. Failure to obtain informed consent. Even if the procedure was performed without negligence, it is still necessary for the health care provider to secure the patient's informed consent before providing medical care. If DM was confronted with an emergency (unexpected complications during surgery) and the patient was unable to provide informed consent because he was under anesthesia, the law will imply the person's consent to necessary medical treatment. On the other hand, if DM were doing something that didn't have an emergency quality to it -- if he could have waited to discuss the risks associated with the procedure -- then he had an obligation to do so. II. Sovereign Immunity Statute Broad waiver. SOE is protected by a sovereign immunity statute. Although the waiver of immunity is broad -- SOE agrees to be subject to "the same rules of law as are applied to civil actions against natural persons and corporations," (§ 41.031(1)), this waiver is limited by two features. Discretionary function exemption. The first is an assertion of the discretionary function exemption, which is in § 41.032(2). This seems to be word-for-word the same as the Federal Tort Claims Act, and would likely be interpreted in a similar fashion. We would argue that in deciding to do this procedure, DM was exercising a discretionary function. However, the plaintiff would argue (likely successfully), that this retention of immunity only applies to policymaking. A decision of whether to perform a particular medical procedure, though it might be discretionary, would not appear to fit the classic policymaking function that this exemption is designed to protect. Damage limitation. The more important reservation is the limitation on damages that is contained in ERS § 41.035, which caps the damages at $75,000.2 The plaintiff may have some argument as to how this doesn't apply, but it appears relatively straightforward. While some jurisdictions have struck down limitations on medical malpractice statutes that impose limitations, where the state is choosing the scope of its sovereign immunity waiver, I doubt that a court would find that this violated any constitutional guarantee. Nonetheless, we should make sure that the damages cap is reliable. III. Damages Under the Wrongful Death Statute It's a good thing there is a cap on damages, because the wrongful death statutes are quite generous. They provide that the "heirs" (in this case, the spouse of the decedent) are permitted to recover not only her "loss of probable support" (that would be the lost income from a successful accountant), plus her "grief and sorrow, loss of . . . companionship, society, comfort and consortium." That would be an awful lot of money. Moreover, although the statute permits a recovery for the decedent's pain and suffering, it would appear that he didn't suffer any because his death occurred while he was presumably under anesthesia. If for some reason the cap on damages turned out to be unenforceable, the state's liability could be several million dollars. IV. Comparative Fault Although there could conceivably be some contributory negligence in the horseback riding, or possibly assumption of risk, we don't know enough about the facts to speculate about it at this point. Moreover, even if it would be a defense to a claim against the state based on DeWolf, Torts, Fall 2009, Sample Answer Page 5 lessening BKA's liability. In addition, whoever employed Price would be liable for worker's comp. benefits, which in turn would have to be paid back. benefits would include medical expenses and wage loss compensation. In the event of a recovery from BKA, the worker's comp. system would undoubtedly be entitled to reimbursement for whatever amounts they have already paid Price. This could complicate any settlement negotiations with BKA, since Price would be interested. DeWolf, Torts, Fall 2009, Sample Answer Page 6 QUESTION 1 G Overview G Medical Malpractice claim G Failure to follow Standard of Care G Expert testimony required G Comparable specialty G We could offer opposing testimony G Q of fact for judge G Informed consent G Duty to disclose Material risks G Were Alternative therapies disclosed? G Would emergency imply consent? G G Sovereign immunity G Statute provides broad waiver G Exemption for discretionary function G If like FTCA, was this policymaking? G Unlikely to be immune G G Damage limitation G Maximum of $75K, per § 41.035 G Would constitutional challenge be made? G G Measure of damages for wrongful death G "Heirs" include Wendy G Wendy entitled to economic loss G Wendy entitled to grief and loss of consortium G Enormous $$$ if limitation ineffective G G Comparative fault? G Maybe contributory negligence or AoR G Wouldn't matter if damage limitation holds up G G G G G G QUESTION 2 G Overview G Product Liability Claim G Liability for a defect G Was there a manufacturing defect? G If so, strict liability G Was lack of harness a design defect? G Standard: would reasonable designer add safety harness? G "Strict liability" uses hindsight G No new knowledge of risk G Even if RAD required, expert has it. G BKA will have its own experts G G Warning defect G What warnings accompanied mask? G Would enhanced warning change outcome? G G G G Comparative Fault G Contributory negligence G Modified comparative fault G If Price more than 50%, barred G Assumption of risk G Doubtful Price voluntarily assumed risk G G "Unknown Person" also at fault G Does § 41.141(4)) apply even if P not at fault? G Joint and several liability? G Several liability only per § 41.141(4) G Exception for "strict liability" G Would "strict liability" apply to PL? G Reduction for worker's comp. G Was employer at fault? G G G Exam # ____________________