Torts I

The locality rule states that the standard of care of medical personnel is that of a practitioner in good standing in the local community in which the practitioner practices.

The majority of jurisdictions have adopted a "similar community in similar circumstances" test instead.

Some jurisdictions have also done completely away with the locality rule and adopted a "national standard," especially for board-certified specialists.

Informed consent is required of medical professionals. There are two standards as to what standard to apply:

• Reasonable physician standard

  • Required to inform patient that which a reasonable physician would usually disclose.

• Reasonable patient standard

  • Required to inform patient that which a reasonable patient would want to know.
  • Majority rule
  • Subjective

  • Needs to be informed of:

    • Adequate information about the treatment
    • Available alternatives to the treatment
    • Material risks involved
    • i.e., relevant risks

Exceptions exist:

1. Risks that either ought to be known by everyone or are already known to the patient
2. Where full disclosure would be detrimental to a patient's total care and best interests
3. In an emergency and the patient is in no condition to determine for himself whether treatment should be administered

As the risk and chance thereof increase, so does the information required to be disclosed.

A physician must disclose personal interests unrelated to the patient's health, which research or economic, that may affect the physician's professional judgment.

1. One licensed to practice medicine is presumed to possess the degree of skill and learning which is possessed by the average member of the medical profession in good standing in the community in which he practices, and to apply that skill and learning, or if he does not apply it, he is guilty of malpractice.
2. Before a physician or surgeon can be held liable as for malpractice, he must have done something in his treatment of his patient which recognized standard of good medical practice in the community in which hie is practicing forbids in such cases, or he must have neglected to do something which such standard requires
3. In order to sustain a verdict for the plaintiffs in an action for malpractice, the standard of medical practice in the community must be shown by affirmative evidence, and, unless there is evidence of such a standard, a jury may not be permitted to speculate as to what the required standard is, or whether the defendant has departed therefrom.
4. Negligence on the part of a physician or surgeon in the treatment of a case is never presumed but must be affirmatively proven, and no presumption of negligence nor want of skill arises from the mere fact that a treatment was unsuccessful, failed to bring the best results, or that the patient died.
5. The accepted rule is that negligence on the part of a physician or surgeon, by reason of his departure from the proper standard of practice, must be established by expert medical testimony, unless the negligence is so grossly apparent that a layman would have no difficulty in recognizing it.
6. The testimony of other physicians that they would have followed a different course of treatment than that followed by the defendant is not sufficient to establish malpractice unless it also appears that the course of treatment followed deviated form on the methods of treatment approved by the standard in that community.