D intends to cause a (i) harmful or offensive contact with the person of the other (or a third person), or (ii)

an imminent apprehension of such contact INTENT - with purpose, desire, or substantial certainty (subjective standard) Most Courts: only the intent to touch is necessary Other courts: Dual intent to (i) intend the contact and to (ii) intend the offensive or harmful action (the consequences). - intentional act must be voluntary (no sleep movements) Transferred Intent: intent can transfer: is still a tort but he must have intended to offend or touch. (But consent does not transfer).[a different tort on the same person; an intended different tort on different person] imminent apprehension occurs Assault (Threat of physical contact) The other (must be reasonable) is thereby put in imminent apprehension of contact (no future threat) Victim must: (ii) be aware at that moment (before is is over) (iii) believe that a harmful or offensive contact on her is imminent due to an action of D. (iv) believe that D is able to commit the action Conditional threat (option to escape): is assault (unless privileged) Words alone are not the basis for assault unless together with other acts or circumstances Unforeseen Consequences (not limitless): you are liable-take the plaintiff as you nd him. Texas Penal code 22.01. Assault A person commits an offense if the person (i) intentionally, knowingly, or recklessly causes bodily injury to another (or spouse); (ii) intentionally or knowingly threatens another with imminent bodily injury (or spouse); or (iii) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative. Intentional Iniction of emotional distress (IIED) (i) extreme and outrageous conduct, (ii) intentional or recklessly , (iii) causes (iv) severe emotional distress (see med attention or sleeplessness) Defenses: D had a right to put the mother with her children on the street (not paying rent) Outrageous: - distress must be (i) severe for a reasonable person of ordinary sensibility (the minimum requirement) and plaintiff must (ii) actually be distressed. - for conduct exceeding all bounds usually tolerated by decent society - gross insults only sufcient if delivered by a public utility, carrier, innkeeper telegraph. Ask: - did the defendant have some power over the plaintiff (special relation). - did the plaintiff have some vulnerability the defendant knew about (child, hypochondriac, but not a short person)? - was it a repeated act? Reckless: - he knows of high probability of harm but disregards precaution that would eliminate the risk. - the defendant knows or should know but acts in indifference - an intentional act that raises the probability (getting drunk) Eggshell skull: goes into damages (after showing distress of a reasonable person) -you can recover for physical injury that fall form it: She cracks her head after being told that her son is dead. This is IIED (Rest 46) - killing a beloved dog or object Third party IIED liability 1. The third person is a (i) immediate relative of the distressed person who is (ii) present at the time; (iii) D knows of third person's presence; or 2. Any third person who is (i) present at the time and distress results in (ii) bodily harm, (iii) D knows of third person's presence

Thomas Hiesberger, hiesberg@yahoo.com

Battery (iii) A harmful or offensive contact (with the other) directly or indirectly results. Contact: direct physical contact or something intentionally (but not accidently) set in motion to contact with P's sphere of personal autonomy, with the imminent extension of the person (shopping bag and horse, ?car? but not bus). Touching of anything that is attached or identied with the body--no battery by inaction - Victim need not be aware at the moment battery occurs Offensive contact: - offending a reasonable sense of personal dignity; or - when D know of P's special sensitivity. No offensive contact: - when prior conduct or habit allows it. Unexpected consequence: you are liable for the unforeseen Eggshell skull: liable for full damages (you get the plaintiff as you nd him) Disease: If no actual exposure occurred, no offensive act was committed Harmful: physical impairment Smoking: is battery if smoke is intentionally directed at P, but not when the smoke nds its own way (second hand smoke) [Leichtman], but courts differ. False Imprisonment? (i) D intended to conne [negligence or recklessness is not sufcient], (ii) D's action (directly or indirectly) results in connement (iii) within boundaries xed by D, (iv) against P's will, (v) P is aware of the connement or harmed by it (vi) no reasonable escape for P. Transferred intent is works here too. Connement: Test: whether a RP would feel that he could not leave - P submits to force (is not assenting to connement) - D takes car key away (in the middle of nowhere) - D blocks his car in a bad neighborhood - D: If you leave the room, I kiss you, I kill you, kill you child, keep your purse - D asserts to have legal authority and P reasonably believes. - P does not have to risk (i) harm or (ii) designer dress or (iii) dignity to escape. Unaware toddler (harmed by deprivation of care by his relatives) Texas Shoplifter Statute (Tex. Civ. Prac. and Rem. Code 124.001 Detention) A person who - (i) reasonably believes that another has stolen or is attempting to steal property is privileged to detain that person in a - (ii) reasonable manner and for a (no handcuffs) - (iii) reasonable time to investigate ownership of the property (10 min) - Merchant may not purport to arrest the suspect but must call the police Outside store?: courts are split. Negligent iniction of Emotional Distress (Hill) (i) Had a duty not to beat him up next to her. (ii) breached that duty (iii) injury--miscarriage, that leads to emotional distress (iv) causation If there is no injury you need: (i) special relation (contract) (ii) particular susceptibility (iii) defendant must know about susceptibility - mishandling of dead body - false death notice by telegram - syphilis notice--divorce emotional distress can trigger the bodily harm

Touching occurs

No imminent apprehension

If no other Tort ts

If not reckless but negligent you need injury

Bystander P must: be (i) at the scene (ii) must have emotional shock (don't need physical injury); (iii) and closely related with victim (uncle who resides together); - does not have to be within the zone of danger Victim must: have serious (but not bodily) injury[unsuccessful rape] A few moments later...: not present at the scene (watch out)

Intentional Torts (Persons)

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Trespassing to land (i) Intentionally, (ii) comes onto P's land or causes someone or something to come onto P's land (iii) or remains on the land, (iv) or fails to remove something he has a duty to remove. - No physical injury (damage) necessary - Motive does not matter He is trespassing - If he forces his employee to enter: Only he is liable - If he sends his employee: Both are liable - He is privileged to do one thing does something else - mistaken about the ownership and trespasses (good faith is immaterial) - children can be trespasser - conducts enormous dangerous activity (underground gas well storage that explodes into somebody else's land--without intent or being there. - you can trespass on something other then the surface - Fumes, smoke (more often a nuisance case) - trespass in order to repossess He is not trespassing - if it is not a voluntary act. - if the actor reasonably believes it to be, necessary for the purpose of averting an imminent public disaster. Not tangible material (smoke, gas) > only when substantial damages, but ash (when substantially certain) Airspace: special rules (i) airplane is below federally-prescribed minimum altitude; and (ii) ight substantially interferes with P's enjoyment of the land. Conversion - Intentional possession was so substantial that D should be required to buy it. - First explain trespass to chattels (occurs always rst) then go into conversion Exercise of dominion or control for duration To distinguish from conversion ask: 1. Duration of D's dominion of the property (also: control complete?) 2. Good or bad faith. 3. Degree of harm done to the chattel 4. Inconvenience and expenses for P 5. Did D intend to assert right inconsistent with P's possession? EXAMPLES: Destruction: You break it, you buy it. Purchase of stolen goods: you unknowingly buy a stolen painting from an art dealer and keep it for 10 years. - He steals car and damages it. Transfer to third person: Tom delivers package wrong person (to John instead of Frank) and John leaves with the package. Tom is a converter. Withholding goods for substantial time: Parking garage refuses to return car. Consent Defense: D reasonable believed that P lets him have the chattel

to Not a land but harm occurs

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Trespassing to chattels (i) D intentionally interferes with P's possession of a thing (ii) harm must occur (unlike trespass to land). - possessor does not have to own it Examples - he thinks he shoots a wolf but it is somebody's dog - Ebay complains of spider programs that bring their server down - Somebody rips a page in my notebook. Mistakes about ownership: - still a trespass Defenses (i) Only when wrongdoer is in the process of taking the chattel or shortly thereafter (when in hot pursuit). (ii) After reasonable believe that he has taken the property. (iii) No deadly force

D should be required to buy it (if you want to sell it)

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Intentional Torts (Property)

Defenses
Insanity and Infancy - not a defense but might be a question of intent - Dual intent might be required: intent to contact and intent to harm. However most courts hold that mental illness does not automatically negate intent. - it is better to hold the crazy person liable rather than let the victim be uncompensated. Reason of necessity (Property) Public necessity--prevent disaster for community: (actor pays no damages) - saving the town Private necessity (actor pays damages) - stealing somebody's bike for emergency

Privilege
negates the tortiuous nature of the tort, therefore privileged actions cannot be transfered and become a tort

Policy Defense Plaintiff can't recover, but it is still a tort - Statute of Limitation - Statute of Repose - Governmental Immunity Performance of a public duty policeman handling a suspect ----------------------------------------It is OK to restraining a mentally ill person

Discipline (i) within the denition of "privileged person"; (ii) within the Consent scope of the job; (iii) acting under discretionary authority - If you have consented, it cannot be a tort (In Texas it is an Afrmative Defense) - Only reasonable force and connement for discipline Apparent consent [Implied consent] (as effective as actual consent) purpose (education and training) - words or conduct are reasonably understood by another to constitute consent Is it reasonable: - his action or inaction justify a reasonable person to nd consent (even if none exists!) - Is the actor a parent? (more leeway) Actual consent (willingness in fact) - Parent's motives, age and mental condition mental, nature of - Willingness in fact for conduct to occur. It may be manifested by action or inaction and need offense not be communicated to the actor. - Was it disproportionate (reasonable compared to the offense) No effective consent: Who - if you consented to a different conduct; different time; area; exceeding the consent; consent Child-parent, In loco parentis; grandparents, teacher, school bus was already terminated (unless irrevocable) driver, School nurse; Prison guard-prisoner; Ofcer-soldier - Can't consent to certain types of dangerous activities Proper purpose for discipline (in all jurisdictions): - No capacity to consent: A minor, unconscious, intoxicated cannot consent to sexual - has to be used to enforce an instructional command intercourse, unless (?) he does not have any reason to know. (but criminal law has strict age - don't be cruel, unnecessary, demeaning limit) - to handle disruptive behavior - No duress or coercion [but economic duress does not negate consent unless a employee- do not punish academic or athletic performance employer relation] - no excessive force or be negligent to cause bodily harm Illegal act (duel, ) Most courts hold that you can't consent to a criminal act. Tex. Edu. Code 22.0511 Immunity from Liability Mistakes negating consent (a) A professional employee of a school district is not personally - when substantial and known to D liable for any act that is incident to or within the scope of the Medical consent duties of the employee's position of employment and that - Must be carried out by medical professional using scientic procedures involves the exercise of judgment or discretion on the part of - Removes spleen instead of appendix (Battery, unless emergency) the employee, except in circumstances in which a professional - He consents to medicine (not informed about the side-effect) > negligence employee uses excessive force in the discipline of students or Misrepresentation negligence resulting in bodily injury to student. - She would not have allowed the touching if she had known that he was not a doctor (battery) (b) This section does not apply to the operation, use, or - P had intercourse with D (D promised to marry her but has no intention to do so): Battery maintenance of any motor vehicle. - P had intercourse with D (D has venereal disease, P gets infected)[Unless D thinks he is not (c) ... infectious]: Battery Communication Property - if it was consented in fact, it does not have to be communicated to the trespasser (he can act He can use reasonable force not unaware of the consent and it's OK) intended or likely to cause death or - but if consent it retracted it must be communicated to the trespasser serous bodily harm to prevent or Consent implied by law [Actor is unable to consent and a reasonable person would consent] terminate intrusion if (i) P is unable to give consent; (ii) Immediate action is required to save P's health or life; (iii) (i) the other is not privileged or the other there is no indication that P would not consent if able; and (iv) a reasonable person would have (intentionally or negligently) causes such consent. believe. He can use force intended or likely to cause death (ii) he reasonably believe that the intrusion Self-Defense or serious bodily harm can be prevented only by force. You are entitled to use reasonable force to prevent any threatened (i) reasonable believes that another is about to inict (iii) he has rst requested the other to harmful or offensive bodily contact and any threatened upon him an intentional contact or other bodily harm desist and the other has disregarded the connement or imprisonment. (ii) he is put in peril of death or serious bodily harm request [or the actor reasonably believes P must reasonably believe that the aggressor is going to touch or ravishment, that a request will be useless or that you (not important what he really intended) (imminent danger) (iii) which can safely be prevented only by the substantial harm will be done before it can Not OK: immediate use of such force be made] - if the other is privileged Unless he Defense with mechanical device (barbed - punishment of past wrongs, retaliation (i) correctly or reasonably believes that he can, wire, dog)--Analyze as if D were present - upon provocation by words (ii) with complete safety, retreat or relinquish the must be (i) reasonable [she would be - to forestall future threat does not justify self-defense (harm must be excise of any right or privilege privileged to use similar force if present], (ii) imminent). But he does not have to necessary, and (iii) known. But, If you mistakenly believe that you are attacked, it's OK if you (i) retreat within his dwelling or permit the other to Ask: was deadly force privileged against defend yourself reasonable. intrude or dispossess him of his dwelling that particular intruder. Ask (ii) abandon a lawful arrest Mistake (intruder was privileged) - was your self-defense proportionate, or did you exceed your Examples: D has no defense (unlike in self-defense) privilege? - don't defend yourself against st attack (not unless intruder, intentionally or negligently Retreat threatening serious harm) with a gun [even if only causes the mistake - If there is a reasonable safe way to clear up mistakes and facts, intending to injure P] Mistake (as to danger) you have to do so. - you are attacked with a knife on the street: you may D has defense when he uses deadly force - unless there is no safe retreat (or at home) defend yourself with your sts rather then running away against a burglar whom she reasonably - don't have to retreat if you use less then deadly force. but not with your gun rather then running away. believes to be armed, but he is not armed. Dwelling Against Negligent Conduct: He can use reasonable force Burglar: You can use deadly force to Use reasonable force not intended or likely to cause death Defense of others not intended or likely to cause prevent the consummation of your or serious bodily harm unless you can safely retreat or - If he is privileged to death or serous bodily harm dispossession if you reasonably think avoid the harm. (if retreat endangers you, you don't have to defend himself, so are you (Rest 63) nothing short of deadly force will safely retreat. in defending him (even if he (i) If he reasonably believes keep the burglar out. He can use reasonable force is not actively defending another inicts upon him harmful Dispossession of Chattels (i) against harmful or offensive contact or bodily harm himself) or offensive contact, and prompt, reasonable force to retake chattel which he, (ii) reasonably believes to be threatened by the Mistakes: If you help (ii) the other is not privileged conduct of another, although, (iii) he recognizes such (unknowingly) the bad guy or Recapture of Chattels (iii) he does not have to retreat or conduct to be negligent. ( they make a movie) you are prompt, reasonable force to retake chattel comply with a command Unless: OK in most jurisdictions - owner must be in fresh pursuit (without He can't use force likely to (i) he knows or should know that he can (your thinking must appear unreasonable delay) cause deadly injury (he is liable (ii) escape the necessity of doing so by retreating, or by reasonable); Other courts - property must have taken wrongfully: even if he does cause the same (iii) giving up the exercise of a right or privilege which, say, that you step into the Use of force not privileged in repossession injury as when using force not under the circumstance, it is reasonable to require him to apparent victims shoes). likely to cause serious bodily relinquish. - never use deadly force harm)

Defenses

bodily harm, (iii) D knows of third person's presence

Negligence
When D's conduct imposes a unreasonable risk upon another, which results in injury.(Only conduct counts but not the intent or mental state. - the failure to exercising reasonable care under the circumstances in a particular incidence. D's conduct imposed a unreasonable risk: (i) D owed a legal duty to P or to the general public to conduct himself according to a certain standard (ii) D failed to behave with the degree of reasonable care required (breach of duty) (iii) P suffered a injury (harm must be reasonable foreseeable) (iv) cause in fact, and (v) proximal cause [legal cause]{not too remote} Foreseeability Considerations: - the reasonable foreseeable risk or probability that his conduct will result in harm to the person situated as plaintiff; (ii) the foreseeable severity of the harm. Ask: Is the risk foreseeable for a reasonable person? Gross Negligence Several jurisdictions (Texas): must have a conscious state of mind to do something very risky (get punitive damages)

No duty to assist Unless: - D is the owner of business premises - D created the danger - D undertakes to assist (starts to assist, promises to assist

Good Samaritan Rule -Protects rescuers whose conduct is merely negligent, but not something worse like reckless, willful or wanton. Fireghter rule A public employee who suffers an injury caused by a kind of hazard that she confronts as a normal part of his job, does not ha a negligence claim against the person who created it,

Legal Duty (Court's decision--as a matter of law) -to exercise reasonable care in the conduct of our own affairs -established by (i) tort statute, (ii) adoption of non-tort statute, (iii)act as a reasonable person of ordinary prudence under the circumstances, jury will decide whether standard was met. -not to create an unreasonable risk of harm. Duty exists: - if you have created the dangerous situation (Dram shop-bar is liable if they let you drink beyond a reasonable limit) - contractual relation or special relation; after voluntarily rendered aid; companion on social venture; D and injurer have a special relation No Duty exists: -Bystander (unless he created the dangerous situation) Risk benet analysis (Negligence Calculus) - If P x L > B, you have a duty. - (P) Probability of harm x (L) injury > (B) burden of precaution. - if harm is more costly than the cure, you have to cure - risk can be reduced by warnings! Failure to warn could itself be negligence. The conduct is negligent: - if the magnitude of risk outweigh the burden of risk prevention. - If he did not reduce the risk enough to satisfy the formula (storekeeper does not have to inspect continuously but only every hour) - If the actor was not aware of the risks, ask what the burden of being aware would have been. TEX: A duty to act as a reasonably prudent person under the same or similar circumstances, considering the reasonably foreseeable risk or probability of harm to persons situated as the plaintiff. Reasonable person (objective standard) - Ask: Whether a reasonable person of ordinary prudence in D's position (under the circumstances) would act as D did. - has knowledge of the standards of community; qualities and habits of human beings - has the same facilities or resources available as the actor Anticipation of other's conduct - a reasonable person possesses at least limited ability to anticipate the conduct of others. RP can presume that others will not commit crime or intentional torts (unless he has special knowledge) but may be required to anticipate negligence. Physical disability: - a reasonable person with the same disabilities. Ask: what is the connection between the disability and substandard conduct. But, contributory negligence: Could the disabled foresee and take special precautions (physical disability)? Sudden incapacitation: liable only if incapacitation was foreseeable to him Mental or emotional disabilities: - the ordinary, reasonable person is not deemed to have the same mental characteristics [generally pay for their torts (unless child)]. - no inuence in the determination of negligence (no justication or excuse) - Intoxication is no defense (will be held to the standard of a sober person), but involuntary intoxication might be taken into account. Person with special knowledge - standard is that of a reasonable person with such superior attributes (plaintiff may have relied on that) - people that handle dangerous substances - knows of bad road condition, but drives too fast anyway Persons with substandard knowledge - is ignored to determine his reasonableness - "beginner status" is only taken into account when the plaintiff is the instructor. Injured Rescuer: D is liable if he negligently put himself (or another) in danger and rescuer is injured. Possessors of Land Children Rest. (age below majority, 18-21) - conduct must conform to a reasonable person of that (i) age, (ii) experience, (iii) knowledge, (iv) maturity, (v) education (unless engaging in typically adult, dangerous activity). Consider also: mental or emotional disability; did parents give instructions? Under 5 years: no negligence possible Adults can usually adjust their conduct for the child's proximity unless their status cannot be detected (car driving) Children Texas - under 5 years: no negligence possible - 5-14: standard is the "reasonable child, same age, circumstances" - above 14: adult standard (unless disabled

Reasonable care Custom (is a standard) - to dene whether the defendant used reasonable care Departing from custom: rebuttable (suggestive but not conclusive) proof of negligence. Acting according to custom: does not automatically preclude negligence. Jury is still free to conclude that industry custom is unreasonable dangerous. (use better screws) Custom must be (i) widespread; (ii) well known to be wide spread; (iii) generated by regarding safety measures - violation of a statute cannot be a custom Emergencies (unusual decision in a short time) - the reasonable person in such an emergency - if the actor is confronted with an unexpected emergency (requiring rapid response), it needs to be taken into account to determine whether his conduct was reasonably careful. (time pressure limits good judgment) - but, if the emergency arose out of a negligent conduct by the defendant, he is liable even when his later actions (dealing with the emergency) were reasonable. Contributory negligence (must prove same elements) - duty to protect your own safety 1. conduct that only endangers himself (climbing a ladder) 2. conduct that endangers somebody else (trafc) in some states it bars recovery in other there is comparative negligence Trial procedure Plaintiff must prove 1. Burden of production - sufcient evidence to establish a duty as a matter of law - that defendant breached duty - that proximately - caused injury 2. Burden of persuasion - more probable than not that his injuries arose out of D's negligence

Negligence

Statutes Statutes not expressly dealing with tort liability: - (i) absolute statute propose a standard of conduct (Stop at the red light) - (ii) conditional statute propose a standard of care (describes the conduct of a reasonable person) - when the legislator has something condemned as unlawful, it cannot be reasonable

Negligence per se (violation of an absolute statute,--standard

of conduct)--a conclusive presumption of duty and breach of duty. (i) actor violates a statute (must be a "safety statute") (ii) violation caused injury (iii) statute is designed to prevent this type of harm (iv) victim is within the protected group (if it is designed to protect employees, a visitor is not protected) takes care of the reasonable person standard - still need to prove causation and injury - Court has to apply statute unless unconstitutionally Excuses (Courts may excuse a violation as long as the statute does not prohibit an excuse) 1. violation was reasonable due to incapacity of actor (child's jaywalking) 2. Actor exhibits reasonable care to comply but fails (fog-drives slowly but runs stop sign) 3. The actor neither know or should know (or Rest.: Statute is presented in confused way) (Contractor has no reason to know that he digs within the high-power line danger area) 4. Confronted by emergency not caused by his conduct he crosses the centerline 5. Compliance with statute is a greater risk. (cross centerline to avoid child) Contributory negligence per se: helps the plaintiff where the jurisdiction allows it.

Legislators response to the Boyle case 21.15. Improper Photography or Visual Recording A person commits an offense if the person (i) photographs or by videotape or other electronic means visually records another - (a) without consent; and - (b) with intent to arouse or gratify the sexual desire of any person; or (2) knowing the character and content of the photograph or recording, promotes such a photograph or visual recording such an offense is a state jail felony.

Res Ipsa Loquitor (the case speaks for itself)

(i) injury does not normally occur (in the absence of negligence, injury would not have occurred, [or most of the time, negligence is the cause of such occurrence. (ii) instrument was in exclusive control or management of defendant [some courts: (ii) more likely to be under D's control then under somebody else's] (iii) plaintiff must not have contributed to the event (iv) direct evidence of D's conduct must not be available {(v) D must know more (evidence) then P (patient was unconscious)? (vi) Injury not due to plaintiff} Why? - to meet the burden of production with circumstantial evidence and go to the jury without direct evidence. - if it is so clear that a lay-person can understand it, you don't need experts: RIL (scissors, sponges stay behind) - If you need expert, is not RIL (Rest. says that expert witness in medical malpractice RIL case is admissible. - you can use evidence to rebut other causes of the injury (other then D's negligence) Court Procedure 1. Judge must decide whether there is enough evidence to go to the jury 2. Jury must decide wether to believe it (often they don't)[permissive interference] Management and control - under the exclusive control at the particular time when the negligence happened. (unless change of circumstances) - guest could have thrown the chair out of the hotel window as well More then one in control If joint enterprises (Elevator company and ofce building owner) (either the surgeon or the nurse) (exploding coke bottles, gas-lines) [shared responsibility]. Especially when all of the Defendants participate together in an integrated relationship. Texas: in medical cases -RIL only recognized by cases by appellate court prior 1977) (X-ray burns, operation on wrong part of the body, mechanical devices, foreigns objects) Rebuttal: - General evidence of due care: that D was in fact careful will not be successful, but evidence directly disproving one of the requirements of the doctrine will lead to a directed verdict.

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Statutes

Defenses
Medical and Professional Malpractice
(i) committed by someone with special knowledge or skills (ii) special relationship with those you are attending (iii) must be inseparable part of medical service (falling out of hospital bed v. operation table) doctors, lawyers, accountants, engineers 1. Negligent Treatment - good results are not guaranteed, only that he will uses the requisite minimal skill and competence ( unless he warranted a cure) - if D holds himself out as a specialist, he will be held to the minimum standard of that speciality. - must have performed with less skill than the minimally competent specialist (not less then the average) - pro bono is irrelevant - is negligence unless he takes out the wrong organ.
Medical Standard of care (established by expert opinion to determine custom) - reasonable qualied practitioner/specialist in the eld renders opinion whether somebody has complied with the customary standard Reasonable physician - possess and exercise training and skill of a reasonable physician of ordinary prudence (not average but minimum) - is allowed to follow a respected minority Local community standard: standard of the custom or the relevant community must be breached Similar community standard; National standard (Texas): - reasonable professional in the same class (except when benet cost is high) - specialist from same eld unless overlapping - beginners are held to the same standard

2. Failing to Disclose (Informed Consent) Patient admits to have consented but claims to not have been fully informed. (i) duty (a patient has the right to know) (ii) breach (fail to disclose the risk negligence) (iii) injury caused by undisclosed risk (iv) ? P (or reasonable person), if informed, would not have chosen treatment? (jurisdiction split) Old common Law: If not fully informed it is a battery Nowadays: is negligence unless there is no consent at all. Therapeutic privilege:?if disclosure could hurt the patient?, he does not have to disclose (jurisdiction split) Emergency: the physician is not liable for negligence Disclose what? - all materially information that the doctor expects the patient to know Materially: - Common law: expert - Texas: Medical Disclosure Panel

Texas Civil Practice & Remedies Code 74 Medical Liability General Provisions
74.001 Denitions Healthcare provider: all the medical persons (nurses, pharmacist, dentist, health care institution), but not the physician)? Healthcare liability care: (i) departure of accepted standard of medical care [custom], (ii) directly relating to healthcare, (iii) resulting in injury Physician: in Texas licensed physician or group thereof 74.101 Theory of Recovery - Negligence is the only theory for failure to disclose the risks 74.102 Medical Disclosure Panel (a) determines what is to be disclosed (b) only administratively attached to Texas Department of Health 74.103 Duties of Disclosure Panel (a) determines whether a particular treatment requires (or not) disclosure of the risks to the patient (b) the degree of disclosure required 74.104 Duties of Physician or Health Care Provider - If the physician discloses he has complied with the requirements 74.105 Manners of Disclosure - consent is effective if disclosure is given (i) in writing and (ii) signed by the patient, and (iii) competent witness, and (iv) states risks in compliance with the disclosure panel.

74.106 Effect of Disclosure - a proper disclosure: rebuttable presumption that the requirements have been complied with. - failure to disclosure: rebuttable presumption of a negligent failure to conform to the duty of disclosure; unless there was emergency or not medical feasible. - if no disclosure panel: go to common law. 74.151 Liability for Emergency Care - good faith emergency care is not negligence, unless (i) willfully negligent, (ii) service for remuneration, (iii) person caused emergency by negligent act. 74.153 Standard of Proof (Medical Emergency) - claimant must show (by preponderance of the evidence) that deviation from standard of care was willful and wanton. 74.201 Application or Res Ipsa Loquitur - only those cases applied before August 29, 1977 74.251 Statute of Limitation on Health Care Liability Claims - must be led within 2 year of the breach - minors under 12 have until their 12th birthday - but not later then 10 years after the breach 74.301 Limitation on non-economic damages - max. $250,000/claimant against any healthcare institution - max. $500,000/claimant against all healthcare institution 74.301 Limitation on Damages - wrongful death or survival action: max $500,000/claimant - adjusted by consumer price index - medical expenses are extra - Liability in "Stowers Doctrine shall not exceed the liability - Jury instructions: bad results can be considered but not exclusively in order to determine negligence

Medical