Malpractice cont' Statutes

1
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

2
Statutory Regulation 101
3
Statutory Regulation 101
4
Negligence per se (Osborne v. McMasters)

• Where statute imposes a specific duty for
  protection or benefit of others, violation of the
  statute amounts to negligence if
• The injuries are of the character the statute
  was designed to prevent,
• The injured party is the kind of person the
  statute was designed to protect
• Causation.

5
Restatement (3d), Genl Prin.

• Sect. 12
• An actor is negligent if, without excuse, the
  actor violates a statute that is designed to
  protect against the type of accident the actors
  conduct causes, and if the accident victim is
  within the class of persons the statute is
  designed to protect.

6
Why should statutes matter?

• Democracy
• Reliance by others (Clinkscales, p. 227)
• Informational advantage of legislature (Hammond
  v. International Harvester, p. 228)
• Cheaper to have a rule reduces everyones
  needing to investigate
• Preference for rules over standards, for ordinary
  reasons