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Osborn v. Irwin Memorial Blood Bank

FACTS: The plaintiff at the age of three weeks contracted the AIDS virus from a bloodtransfusion in the course of heart surgery supplied by the defendant.

ISSUE: Whether the defendant should be held negligent when he fails to administered the anti-HBc in regards to AIDS concern to check for blood safety before transfusion when otherprofessionals within its industry customs are not doing the test.

RULE: Professional prudence is defined as actual or accepted practice within a profession,rather than theories about what should have been done. This is implicit in the definition of thestandard of care as skills and knowledge ordinarily possessed and exercised in a profession

APPLICATION: Here, the industry standard for checking blood in regards to the AIDS concerndoes not include conducting the anti-HBc testing. Professional reasonable care is held to thatthat is accepted or common within the profession practices at the time While it reasonablestandard is the due care in which everyone is held too, there is an exception when a reasonableperson lacks the knowledge necessary to conclude whether the defendant had acted negligently.In those cases expert testimonies are necessary required to show standard of care within thatprofession thereby making it conclusive.

CONCLUSION: Therefore, no evidence is presented that the defendant was not exercising allreasonable care allowed by the industry at that time or that defendant negligently failed toperform tests that other blood banks was doing. N.o.v should be granted to the defendant b/cthere was no substantial evidence that the failure to conduct the tests was not accepted practicefor blood banks in January and February of 1983.

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Nowatske v. Osterloh

FACTS: The plaintiff noticed he had blurred vision in his right eye and approached thedefendant, a retina specialist, who diagnosed him as having a retinal detachment. Prior to thesurgery, plaintiff signed a consent form explaining the risk and possible complications involvedin the proposed treatment. Post-surgery, there was prove of swelling in the eye and the partiesargued about the success of the surgery. The swelling subsided and still was unable to see in hisright eye. The plaintiff was later informed by the defendant that he would no longer bepermanently blind in the right eye.

The jury found that the defendant wasnt negligent and the circuit court entered ajudgment dismissing the case. Plaintiff appealed.

ISSUE: Whether the defendant has failed to use reasonable care, skills, judgment which isexercised by others who are similarly situated or under similar circumstances within the

profession when he performed the eye surgery on the plaintiff.

RULE: Physicians are held to a standard of reasonable care, skill and judgment customarypractice of the profession at the time and a reasonably competent practitioner is the one whokeep abreast of advances in medical knowledge.

APPLICATION: Here, exercising due care is refers to as a reasonably practitioner who keepsup with advances in medical knowledge. In this case, the defendant used a recognized methodcustomary to the industry at the time of operation whether the operation was successful or not isnot relevant. A reasonably prudent doctor keeps up reasonably with knowledge, and doctorsmust adapt to upgrading medical technology. The standard of customary care continues toincrease.As long as the defendants conduct conform to the standard of care noted within theprofession as the degree of care, skill, judgment that an average specialist within the same orunder similar circumstances would have acted. And, just b/c the defendant chose a recognizedtreatment acceptable at the time does not shield them from negligent if it reveals that they hadfailed to exercise due care necessary in doing the operation

CONCLUSION: Therefore, case remanded back to the court of appeals for further processing.

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Rossell v. Volkswagen of America

FACTS: The plaintiff was driving a beetle or bug with her 11 months old baby in the passengerseat. While driving, she fell asleep and was woken up when she hit a sign and attempted tocorrect the path but the car flipped over in which she was unconscious for 7 hrs. Upon wakingup, she noticed the battery had broken during the crash and the fluid had dripped on the babycausing severe burned injury

The jury found for the plaintiff and awarded damages in the sum of $1,500,000. Thedefendant appealed for a motion n.o.v but was denied by the trial judge. Defendant appealed andthe court of appeal held that the plaintiff had failed to establish a prima facie case of negligenceand that the trial court had erred in denying the defendant motion for judgment n.o.v.

ISSUE: Whether the defendant should have foreseen the unreasonable risk of harm created whenbattery is still left inside the passenger compartment when there are alternatives design were

available and practical

RULE: Special group will be allowed to create their own standards of reasonably prudentconduct only when the nature of the group and its special relationship with its client assuresociety that those standards will be set with the primary regards to protection of the public ratherthan to such considerations as increase profitability.

APPLICATION: Here, the defendants are not professional b/c there exist no specialrelationship between the public and the defendant that raises concern about the welfare of theirclients as the professions permits and require of their practitioner. A professional standard ofcare does not govern the car industry. They are still held to the reasonable standard of care stillcommonly susceptible to interpretation by the jury. Industry custom is admissible, so is experttestimonies but both do not need explicitly expert testimony stating the standard of care and thedefendants deviation from that standard. On the issue of the plaintiff establishing a prima faciecase, expert testimonies suggest there are majority of cars with batteries located outside thepassenger compartment, in the luggage compartment as well as in the engine compartment. So,there are plausible, practical and alternative designs that could have been utilizes by thedefendant to prevent risk of harm that is likely to occur from placing the battery in thepassengers compartment.

CONCLUSION: Therefore, issues of defective design are not malpractice issues automobilemanufacturers do not fit into this category and the trial court did not erred in denying thejudgment n.o.v.

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Vergara v. Doan

FACTS: The defendant was negligence during the delivery of the plaintiffs son causing himsevere and permanent injuries.

The jury returned verdict for the defendant and plaintiff appealed urging theabandonment of the modified locality rule

ISSUE: Whether the defendant acted to a reasonable degree of care, skill and judgmentexercised by an ordinarily careful, skillful, and prudent physician at the time of delivery the babyand in similar localities and whether the standard of care comports with society standardsconsidering the advances in the general public

RULE: Physician must exercise that degree of care, skill, and proficient exercised by reasonablycareful, skillful, and prudent practitioners in the same class to which he belongs, acting undersame or similar circumstances.

APPLICATION: Here, the strict locality rule creates some drawbacks in its shortfalls regardingthe availability of doctors to testify to the standard of care and the standard the rule has createddue to scarcity of doctors, the rule have seen to create a low standard of care b/c small doctorsare likely to operate on the same standard of care. The modified locality rule was establishedfrom the strict locality rule b/c of the disparity between doctors in rural areas and doctors in largecities. Several difficulties such as traveling, medical opportunities, facilities, and training weresubstantial gapped between rural and urban doctors that to hold the rural doctors to the samestandard as the urban doctors would have create unfair treatment. Holding the practitioners issmall communities to their peers operating in the same localities was the possible solution butnow than the advances in transportation, communication, and medical education has diminishedthe disparity, its only fair that the doctors in rural communities be held to the same standards astheir peers in general. And, with the availability of insurance opens up the constraints oncustomer by allowing them to choose their own doctors or hospital reducing their financialconstraints. Locality standard becomes a factor to considered among others such as; whether thedoctor acted reasonably, advances in the profession, availability of facilities, and whether thedoctor is a specialist or general practitioner.

CONCLUSION: Therefore, the focusing on different standards for different communities islonger necessary. The disparity that calls for such division has been diminished and doctors in

rural and urban communities can now be held to the same standards. The modified locality rulewont have changed the outcome of this particular case regarding the negligence of thedefendant. Case affirmed.

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Larcey v. Rothman

FACTS: The defendant performed a breast biopsy and six weeks later the plaintiff developed aright arm and hand lymphatic, a swelling caused by inadequate drainage in the lymphatic system.The condition resulted in the excision of the lymph nodes. Initially the plaintiff has consented tothe operative procedure but the defendant had been failed to notify her of all possible riskassociated with the operation even though the risk might be too rare.

The jury responded that the defendant had not been negligent in providing the plaintiffwith sufficient information so that she could give an informed consent to the operationprocedure. The appellate court affirmed the decision.

ISSUE: Whether the defendant had adequately informed the plaintiff of the risks associated withperforming the biopsy operation regardless of the rarity of the risk likely to occur.

RULE: The proper standard is that of a prudent patient that focuses on what the physician

should disclose to a reasonable patient in order that the patient might make an informed decision.A patient has his/her own right of self-determination.

APPLICATION: Here, the defendant is required to inform the plaintiff of all possible risksassociated with the operation in order for the plaintiff to make an informed decision. In this case,the defendant failed to inform her that lymph-edema is a condition likely to occur from theoperation b/c the defendant assumed the rarity of the condition makes it undiscussible. Thedetermination of whether is the risk is materiality is a subjective one to the patient as far as whatthe patient considered to be in his/her own interest in deciding whether to forgo the proposedoperation. The plaintiff still have to prove causation that the defendant failed to comply with theapplicable standard for disclosure and that such failed disclosure of the risk was the proximatecause of his/her injuries. In that sense, the prudent patient standard becomes an objectivestandard; whether a prudent person in the patients position would have decide differently ifadequately informed of all known risk associated with the operation.

CONCLUSION: Therefore, the judgment of the appellate court is reversed