Experts; In General Prosser and Keeton 185 186 Superior Knowledge, Skill and Intelligence; Professional Malpractice If a person

n in fact has knowledge, skill, or even intelligence superior to that of the ordinary person, the law will demand of that person conduct consistent with it; Professional persons in general, and those who undertake any work calling for special skill, are required not only to exercise reasonable care in what they do, but also to possess a standard minimum of special knowledge and ability; Same; Medical Professionals A doctor may contract to cure a patient, or to accomplish a particular result, in which case the doctor may be liable for breach of contract when he does not succeed; in the absence of such express agreement, the doctor does not warrant or insure either a correct diagnosis or a successful course of treatment, and the doctor will not be liable for an honest mistake of judgment, where the proper course is open to reasonable doubt; BUT by undertaking to render medical services, even if gratuitous, a doctor will ordinarily be understood to hold himself out as having standard professional skill and knowledge; FORMULA: doctor must have and us the knowledge, skill and care ordinarily possessed in good standing; and a doctor will be liable if harm results because he does not have them; o BUT this is misleading, since only those in good professional standing are to be considered; and of these it is not the middle but the minimum common skill which is to be looked into; o If the defendant represents himself as having greater skill than this, the standard is modified accordingly; Alternative acceptable treatment Courts compelled to recognize that there are areas that even experts disagree different schools of medical thought and alternative methods; o The doctor is entitled to be judged according to the tenets of the school the doctor follows; o BUT it doesnt mean a quack, charlatan or crackpot can set up his own school; o A school must be a recognized within definite principles, and it must be the line of thought of a respectable minority of the profession; In addition, there are minimum requirements of skill and knowledge, regardless of his personal views on medical thoughts; and physicians are required to exercise reasonable care in ascertaining the operational facts upon which his

diagnosis is based and will be liable if he fails to do so; Fixed Locality Rule Formerly, an allowance was made for the type of community in which the physician carries on his practice (e.g. country doctor with lacking equipment and facilities); o same locality standard too narrow so similar localities was used, including other towns of the same general type; o Improved facilities of communication, travel, availability of medical literature, and the like, have led some courts to abandon a fixed locality rule in favour of treating the community as merely one factor to be taken into account in applying the general professional standard; o Other jurisdictions have discarded locality rule; a general standard is applied, especially in the case of medical specialists Expert Opinion Majority of malpractice cases hold that there can be no finding of negligence in the absence of expert testimony to support it; because juries composed of laymen are normally incompetent on questions of medical science or technique; Where the matter is regarded as within the common knowledge of laymen, as where the surgeon says off the wrong leg, or there is injury to a part of the body not within the operative field, it is often held that the jury may infer negligence without aid of any expert; Good Medical Practice standard What is customary and usual in the profession; It has been pointed out that this gives the medical profession, and also the others, the privilege, which is usually emphatically denied to other groups of setting their own legal standards of conduct, merely by adopting their own practices; This is said because the physician has impliedly represented that he will follow customary methods, and so has undertaken to do so; Another explanation: the healthy respect which the courts have had for the learning of a fellow profession, and their reluctance to overburden it with liability abased on uneducated judgment; Doctrine of informed consent Concerns the duty of the physician or surgeon to inform the patient of the risks involved in treatment or surgery; Earliest cases treated this as a matter of vitiating the consent, so that there was liability for battery; Beginning 1960, however, it began to be recognized that the matter was really one of the

standard of professional conduct and so negligence has now generally displaced battery as the basis for liability; The doctrine is based on principles of individual autonomy and specifically on the premise that every person has the right to determine what shall be done to his own body; o surgeons and other doctors are thus required to provide their patients with sufficient information to permit the patient himself to make an informed and intelligent decision on whether to submit to a proposed course of treatment or surgical procedure; o such disclosure should include the nature of the pertinent ailment or condition, the risks of the proposed treatment or procedure, and the risks of any alternative methods of treatment, including the risks of failing to undergo any treatment at all; o thus, although the procedure be skilfully performed, the doctor may nevertheless be liable for an adverse consequence about which the patient was not adequately informed;

Compromise objective subjective mix; substituting an ordinary patient for the reasonable one and taking account of the patients individual fears and beliefs in considering the plaintiffs position;

Limitation on informed consent doctrine Doctors not required to disclose risks: 1. Unexpected or immaterial, by whatever standard; 2. Material risks where disclosure is precluded by an emergency situation, by the patients waiver of his right to receive the info, or where the disclosure would be harmful to the patient, which gives the doctor a therapeutic privilege to withhold the info; 3. Risks that are commonly understood, obvious, or already known to the patient;

Materiality of Risk the doctors duty is to disclose all risks which are material; based upon a professional medical standard whether physicians customarily inform their patients about the type of risk involved, or whether a reasonable physician would make the disclosure in the circumstances; a number of cases have defined the duty in terms of the patients need to know the information; based on whether a reasonable person in the patients position would attach significance to the information; Causal link between nondisclosure and his harm in addition to proving the doctors failure to provide sufficient information, this must also be established by plaintiff by proving that he would not have undergone the treatment had he known of the risk of harm that in fact occurred; since thered be obvious bias on plaintiffs side, court adopted a reasonable standard of causation: whether a reasonable patient in the plaintiffs position would have withheld consent to the treatment or procedure had the material risks been disclosed; other courts have adopted a subjective causation test, as better protecting the essential values underlying the informed consent doctrine, and so have framed the standard in terms of whether the particular plaintiff would have avoided the treatment or procedure had sufficient information been provided;