Determining Legal Standard of Care

Question of fact unless…

Rule of 7s

Mental incapacity

Russo v. Griffin

Legal malpractice

Determining standard of care

Failed to get non-compete-brothers standard of care

Issue: what do we look at to determine standard of care?

Trial court’s conclusion:

The standard of care in the Rutland area in 1978 required of an attorney did not require him to suggest or recommend to a purchasing client that s non-compete agreement be obtained from a seller who is a relative and who has been a business associate for several years, the transaction not being one at arm’s length

Locality rule

If there are only two lawyers in a small town, and both are incompetent, they cannot set a standard of inferiority for a third who comes to town

Medical negligence

Number of civil filings in superior and district courts from 1998-2003?

1,268,495

Percentages of all civil filings that were medical negligence cases 1998-2003?

.0029 3700

How many of the 3700 medical negligence cases went to trial?

101

Of the 101 trials, how many were won by the doctor/medical care provider?

79

78%

Average jury verdict in the 22 cases won by the plaintiff/patient

$300,000

Number of jury verdicts of 1,000,000 or more among the 22 cases won by the plaintiff/patient

3

.0008% of all malpractice cases filed

Boyce v. Brown

Standard of care

Issue: Does the standard of care require a potentially fractured ankle to be x-rayed?

Determined by expert testimony

Do not allow the jury to infer the standard of care, deal with it in context of what experts tell them is supposed to happen

Expert testimony may differ as to what is the standard of care

Medical Negligence

The standard of medical practice in the community must be shown by affirmative evidence…

Departure from the accepted standard of care must be established by expert medical testimony…

The testimony of other physicians that they would have followed a different course of treatment than that followed by the defendant is not...