Informed Consent, Emotional Distress, Strict Liability, Defamation, Vicarious Liability, Death

What is the first element required for informed consent in medical malpractice?

The physician failed to disclose 'required information' as set by either the patient's materiality rule or the physician's professional standard rule.

What does the patient's materiality rule entail?

Physicians must disclose all significant medical risks that they know or should know about, which are material to an intelligent decision by the patient.

What does the physician's professional standard rule require?

A physician must disclose only such information as is customarily disclosed in similar circumstances.

What is the second element of informed consent?

The plaintiff (π) suffered a legally cognizable harm (LCH).

What is the third element of informed consent?

The harm suffered by the plaintiff resulted from the risks that the plaintiff was not informed about.

What is the fourth element of informed consent?

The plaintiff would have rejected the proposed treatment if they had known of the risks.

What is the fifth element of informed consent?

A reasonable person, if properly informed, would have also rejected the proposed treatment.

First Element of Intentional Infliction of Emotional Distress

∂ intended to cause the π or recklessly causes the π severe emotional distress;

Second Element of Intentional Infliction of Emotional Distress

∂ engaged in extreme and outrageous conduct;

Third Element of Intentional Infliction of Emotional Distress

π actually and justifiably suffered severe emotional distress, i.e., a reasonable person would have also suffered severe emotional distress;

Fourth Element of Intentional Infliction of Emotional Distress

∂'s conduct was a cause in fact of the aforesaid emotional distress.

What is the legal duty in a NIED case?

The defendant must owe a legal duty to the plaintiff unless a no-duty rule applies.

What is the standard of care in NIED cases?

The standard of care is usually reasonable care.

What constitutes a breach in a NIED case?

A breach occurs if the defendant placed the plaintiff at risk of immediate physical bodily harm, and the plaintiff was aware of that risk, or in special cases involving a special relationship or mishandling of the deceased.

What are the special cases that may not require a risk of physical harm in NIED?

Special cases include a special relationship, mishandling of the deceased, or erroneous notice of death of a close relative.

What must the plaintiff demonstrate to establish serious emotional distress?

The plaintiff must show that they actually and justifiably suffered serious emotional distress, which a reasonable person would also have suffered.

What are the three potential requirements for proving emotional distress in NIED cases?

1. Physical impact (nearly obsolete), 2. Physical manifestation as objective proof of emotional harm, or 3. Emotional distress alone suffices as a legally cognizable harm.

What does CIF stand for in NIED cases?

Causation in fact, meaning the defendant's negligence was a cause in fact of the plaintiff's emotional distress.

What is the scope of risk in NIED cases?

The plaintiff's emotional distress must fall within the scope of the risk created by the defendant's negligence.

What is the requirement for a bystander to claim NIED due to a third person's injury?

The bystander must be closely related to the injured third person and must have perceived the injury-causing event contemporaneously or soon thereafter.

What type of injury must the closely related bystander witness for NIED claims?

The injury must be a sudden and serious bodily injury, not just regular emotional distress.

What does LCH stand for in the context of NIED?

Legally cognizable harm, which refers to the emotional distress suffered by the plaintiff.

What is required for LCH in NIED cases involving bystanders?

The bystander must demonstrate actual and justifiable emotional distress, which may include physical manifestation.

What does SOR stand for in NIED cases?

Scope of risk, meaning the plaintiff's emotional distress must fall within the risk created by the defendant's actions.

Strict Liability

liability without proof of fault

Trespassing Animals

An owner or possessor of livestock or other animals, except for dogs and cats, that intrude upon the land of another is subject to strict liability for physical harm caused by the intrusion.

Wild Animals

An owner or possessor of a wild animal is subject to strict liability for physical harm caused by the wild animal.

Abnormally Dangerous Activities

An actor who carries on an abnormally dangerous activity is subject to strict liability for physical harm resulting from the activity.

Definition of Abnormally Dangerous Activity

An activity is abnormally dangerous if: (1) the activity creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors; and (2) the activity is not one of common usage.

Abnormally Dangerous Animals

An owner or possessor of an animal that the owner or possessor knows or has reason to know has dangerous tendencies abnormal for the animal's category is subject to strict liability for physical harm caused by the animal if the harm ensues from that dangerous tendency.

Comparative Responsibility

If the π has been contributorily negligent in failing to take reasonable precautions, the π's recovery in a strict-liability claim under §§ 20-23 for physical or emotional harm is reduced in accordance with the share of comparative responsibility assigned to the π.

What must a plaintiff prove in a defamation case regarding communication?

The plaintiff must prove that the defendant communicated something that was false and defamatory.

What is the presumption of truth for a private figure in a defamation case concerning private matters?

The communication is presumed false, and the defendant must prove it is true as an affirmative defense.

What must a private figure prove if the communication is on a matter of public concern?

The plaintiff must prove that the communication is false and that the defendant was negligent.

What is required for a public figure to prove in a defamation case involving public concern?

The plaintiff must prove by clear and convincing evidence that the communication is false and that the defendant acted with actual malice.

What constitutes a statement of fact in defamation cases?

A statement of fact is something that can be objectively proven true or false, required when the case involves public concern or a media defendant.

What is the significance of 'slander per se'?

Slander per se refers to spoken communications that are deemed to injure a person's reputation without needing extrinsic information.

What are the four categories that qualify as slander per se?

1) Questioning competence in trade, 2) Indicating a loathsome disease, 3) Indicating serious crime, 4) Indicating serious sexual misconduct.

What is required for a plaintiff to show actual injury in defamation cases?

The plaintiff must show that the communication actually injured their reputation.

What is vicarious liability?

Vicarious liability holds a defendant strictly liable for harm caused by tortious conduct of tortfeasors in an actionable relationship.

What is an actionable relationship in vicarious liability?

An actionable relationship exists when the tortfeasor is in a relationship with the defendant, such as employer-employee.

What factors indicate an employer-employee relationship?

Factors include control over work, payment structure, regular business involvement, and the right to terminate the relationship.

What are exceptions for independent contractors in vicarious liability?

Exceptions include when the hiring party retains actual control over the work or knowingly hires an incompetent contractor.

What is required for a wrongful death claim?

The plaintiff must show that the death was wrongful, typically due to the defendant's tortious conduct.

What do survival statutes allow?

Survival statutes allow a decedent's estate to pursue action against a tortfeasor for death or injury leading to death.

What is the relationship between negligence claims and wrongful death claims?

If a regular negligence claim fails, the wrongful death claim will also fail.

What is the role of beneficiaries in wrongful death statutes?

Wrongful death statutes recognize certain beneficiaries who can sue for the death of the decedent.

What is the significance of 'actual malice' in defamation cases?

Actual malice means the defendant knew the communication was false or acted with serious doubts about its truthfulness.

What is the difference between libel and slander?

Libel refers to written or broadcast communications, while slander refers to spoken communications.

What does 'injury per se' mean in defamation cases?

Injury per se means that certain communications are deemed to injure a person's reputation without needing additional proof.

What must a plaintiff prove if they are a private figure and the communication is about public concern?

The plaintiff must prove both that the communication is false and that the defendant was negligent.

What does the term 'defamatory' mean?

Defamatory refers to statements that expose a person to public hatred, contempt, ridicule, or disgrace.

What is the standard of proof for a public official in a defamation case?

The public official must prove by clear and convincing evidence that the statement was false and made with actual malice.