Standard of care - Next Generation Bar Exam

1. What is informed consent in medical malpractice?

   A physician's duty to disclose material risks of a treatment that a reasonable patient would want to know. Some jurisdictions measure materiality by what a reasonable physician would disclose.

2. What is the effect of the defendant's mental disability on the standard of care?

   It generally does not lower the standard. Mentally disabled adults are held to the reasonable person standard.

3. A precaution costs $100, the probability of harm without it is 10 percent, and the loss would be $10,000. Under the Hand formula, what is the status of failing to take the precaution?

   It is negligent. The burden of $100 is less than the expected loss of $1,000.

4. Under United States v. Carroll Towing, how is breach determined under the Hand formula?

   A defendant is negligent if the burden of precaution is less than the probability of harm multiplied by the gravity of the loss. The formula is often expressed as B < PL.

5. A 12-year-old driving a motorboat injures a swimmer. What standard of care applies to the child?

   The adult reasonable person standard. Operating a motorboat is an adult activity.

6. What is the standard of care for a child?

   That of a reasonable child of similar age, intelligence, and experience. Children engaged in adult activities, such as driving, are held to the adult standard.

7. What is the sudden emergency doctrine?

   A person confronted with a sudden emergency not of his own making is judged by what a reasonable person would do in that emergency. Many comparative fault jurisdictions treat it as a factor rather than a separate doctrine.

8. What is the effect of the defendant's physical disability on the standard of care?

   The standard becomes that of a reasonable person with the same disability. A blind person must act as a reasonable blind person would.

9. What is the standard of care for common carriers and innkeepers at common law?

   The highest degree of care consistent with practical operation. Many modern courts apply ordinary reasonable care under the circumstances.

10. What is the effect of the defendant's superior knowledge or skill on the standard of care?

    The defendant must use that superior knowledge or skill. A race car driver driving on public roads must use the skill she has.

11. What is the general standard of care in negligence?

    The care a reasonably prudent person would exercise under the same or similar circumstances. The standard is objective.

12. What is the standard of care for a professional?

    The skill and knowledge of a member of the profession in good standing in similar communities. Specialists are held to the national standard of their specialty.

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