Negligence and Custom outline, Oct. 12, 2004

1
Negligence and Custom (outline, Oct. 12, 2004)

• Three possible standards a Goldilocks story
• Titus v. Bradford (too hard)
• Mayhew (too soft)
• The T.J. Hooper (just right)
• 2. Should custom control? (Pros
  and Cons)

2
Titus v. Ry. (p. 188)

• Reasonably safe means safe according to the
  usages, habits, and ordinary risks of the
  business. . . . The unbending test of negligence
  in methods, machinery, and appliances is the
  ordinary usage of the business. . . . The
  standard of due care is the conduct of the
  average prudent man.

3
Mayhew v. Sullivan Mining (p. 190)

• If the defendants had proved that in every
  mining establishment that has existed since the
  days of Tubal-Cain, it has been the practice to
  cut ladder holes in their platforms . . . without
  guarding or lighting them and without notice . .
  . it would have no tendency to show that the act
  was consistent with ordinary prudence or a due
  regard for the safety of those who were using
  their premises by their invitation.

4
The T.J. Hooper (p. 191)

• The District Court Compliance with custom is a
  duty.
• The Court of Appeals
• In most cases reasonable prudence is in fact
  common prudence but strictly it is never its
  measure a whole calling may have unduly lagged
  in adoption of new and available devices. It
  never may set its own tests, however persuasive
  be its usages.

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Conditions for efficient operation of tort
standard

• Standard of care at least as demanding of
  defendants as the Hand test (I.e., liability for
  failure to take cost-effective precautionary
  measures).
• Stricter standard of care only if it is a
  liability rule, not a conduct rule.

6
Liability and precautions (review 10/5/04)
Efficient conduct by injurers
i ii iii iv v
(least strict) (most strict)
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Bargaining and Malpractice (outline for Oct.
14, 2004)

• Review of pros and cons of bargaining
• Medical Malpractice and custom
• The usual rule within the range of acceptable
  alternatives (Lama v. Borras)
• The locality issue (Brune v. Belinkoff)
• The alternative, cost-benefit analysis (Helling
  v. Carey)
• The special case of informed consent (Canterbury
  v. Spence)

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Custom Pros and Cons

• Pro
• 1. Certainty (rule rather than standard)
  promotes administrability, equal application,
  lessened transaction costs.
• 2. Bargaining, with all the benefits that entails
• 3. Harness expertise
• Con
• 1. Homogeneity
• 2. Self-dealing, because unequal bargaining
  power, imperfect information, etc.
• 3. Stifle (or fail to encourage) innovation

9
Custom Pros and Cons

• Pro
• 1. Certainty (rule rather than standard)
  promotes administrability, equal application,
  lessened transaction costs.
• 2. Bargaining, with all the benefits that entails
• 3. Harness expertise
• Con
• 1. Homogeneity
• 2. Self-dealing, because unequal bargaining
  power, imperfect information, etc.
• 3. Stifle (or fail to encourage) innovation

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2. Bargaining Pros and Cons

• Pro Utilitarian arguments
• expertise of parties in what they want and need
• idiosyncratic valuation
• Allow Coasian bargaining (makes the choice of
  legal rule less important)
• Con Utilitarian arguments
• Inappropriate decisionmaking by parties
  (inability to understand risks, inappropriate
  devaluation of self-harm, etc.)
• externalities from inequalities
• Imperfect markets unavailable information,
  transaction costs etc.

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Coase and his contribution

• The Coase theorem
• The insight of mutual causation.

12

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2. Bargaining Pros and Cons, b

• Pro Liberty arguments (liberty for its own
  sake)
• Con Equality arguments
• Unequal bargaining power/information (discontent
  over allocation of bargaining surplus)
• Default rule tends to favor the status quo

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Possible rules w/r/t custom

• Custom as mandatory term of contract.
• Reasonable care as mandatory term of contract.
• Custom as default term of contract
• Custom as available to parties if they expressly
  bargain for it (so default term is externally
  developed reasonable care)

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How to pick a default term

• Approximate what the parties are likely to
  bargain for (decrease costs of reaching
  agreement). (Serves utility) OR
• Force better information, by picking something
  the parties are NOT likely to bargain for,
  requiring them to bargain around it. (Serves
  liberty), OR
• Distributional considerations. (Serves equality)

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Medical Malpractice

• Standard Within the range of acceptable
  alternatives that is, customary practice.

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Medical Malpractice

• Why is custom the standard? The arguments
• 1) The practices of the profession make tort law
  standard-setting less necessary.
• Alternative institutions encourage
  other-regarding behavior, innovation, training,
  etc.
• 2) Variety of factors make tort law less
  accurate
• Prevalence of bad outcomes.
• Technical difficulty of the subject matter.

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Canterbury v. Spence Informed Consent and Custom

• Respect for the patients right of
  self-determination on particular therapy demands
  a standard set by law for physicians rather than
  one which physicians may or may not impose upon
  themselves.

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Canterbury v. Spence Standard for Informed
Consent

• A. Scope of duty
• The test for determining whether a particular
  peril must be divulged is its materiality to the
  patients decision all risks potentially
  affecting the decision must be unmasked.

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Canterbury v. Spence Standard for Informed
Consent

• B. Causation
• A causal connection exists when, but only when,
  disclosure of significant risks incidental to
  treatment would have resulted in a decision
  against it.
• The causation issue should be resolved . . .
  On an objective basis in terms of what a prudent
  person in the patients position would have
  decided.

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Canterbury v. Spence Doctrinal mechanics The
informed consent two-step

• Breach the materiality standard.
• Causation But for causation.
• Subjective What would this patient have done
• Objective What would reasonable patient have
  done.

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Malpractice (cont.) Statutes Presumptions
(class outline, Oct. 19, 2004)

• Medical Malpractice and custom (cont.)
• The special case of informed consent (Canterbury
  v. Spence, mock argument)
• The alternative, cost-benefit analysis (Helling
  v. Carey)
• Criminal or other regulatory laws, and statutory
  causes of action (express and implied)
• Statutes as a source of content for negligence
  inquiry.
• -- Osborne v. McMasters, Gorris v. Scott

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Canterbury v. Spence

• Why stray from normal reliance on custom for
  informed consent?
• Value choice priority of autonomy over
  expertise.
• Need for incentives absence of professional
  norms that serve preferred value