Medical Malpractice: A Move toward Strict Liability
![handle is hein.journals/loyolr21 and id is 206 raw text is: Medical Malpractice: A Move Toward Strict
Liability
Although strict liability of doctors and dentists continues to be
rejected by name,' there is evidence that theories of recovery not
requiring proof of negligence are meeting with greater success in
Louisiana as well as in the rest of the nation.2 Liability without fault
is the present rule for drug manufacturers.3 It is not surprising,
therefore, that strict liability is a possibility for the practitioner who
prescribes drugs' and the hospital that administers them. Perhaps
it is the difficulties encountered by plaintiffs in proving malpractice
which have caused the legal system to come to their aid.
To prove a practitioner negligent, one must show that a re-
quired standard of care was violated5 and that this violation was
the legal cause of the injury. In a jurisdiction, such as Louisiana,
which still adheres to a relatively strict locality rule,' an expert
witness must testify that the treatment fell below the level of care
required in the particular locale where the mishap took place. He
also must explain the accepted medical procedures applicable to the
1. Cases such as Carmichael v. Reitz, 17 Cal. App. 3d 958, 95 Cal. Rptr. 381 (2d Dist.
1971), and Magrine v. Krasnica, 94 N.J. Super. 228, 227 A.2d 539 (Co. Ct. 1967), have re-
jected strict liability and differentiated between the distribution of products and the furnish-
ing of professional services. Magrine found strict liability an inappropriate way to distribute
the economic loss involved.
2. The required standard of care which will be called negligence or malpractice in
medical cases, if not complied with, is well summed up in the jury charge given in Frost v.
Mayo Clinic as
[Tihat degree of skill and learning which is normally possessed and used by doctors
in good standing in a similar practice in similar communities under similar circum-
stances, and in the application of that skill and learning, he must use reasonable care.
The failure to comply with this standard is a form of negligence which in common
parlance is called medical malpractice. 304 F. Supp. 285, 287 n.2 (D. Minn. 1969).
This criterion is very much like that adopted by the American Law Institute. See
RESTATEMENT (SEcoND) OF TORTS § 299 A, comment g (1965).
3. See W. PROSSER, HANDBOOK OF THE LAW OF TORTS § 99 (4th ed. 1971). See, e.g., Weber
v. Fidelity & Cas. Co., 250 So. 2d 754 (La. 1971).
4. The characterization of those faulty medical services which might give rise to strict
liability would be that of an ultra-hazardous activity, defined in Sections 519 and 520 of
the Restatement of Torts (1939) as one which necessarily involves a risk of serious harm to
the person . . . which cannot be eliminated by the exercise of the utmost care.
5. Louisiana courts have frequently quoted the standard formulated in Meyer v. St.
Paul-Mercury Indemnity Co. as that
IDiegree of skill ordinarily employed, under similar circumstances, by the members
of his profession in good standing in the same community or locality, and [the] use
[of] reasonable care and diligence, along with his best judgment, in the application
of his skill to the case. 225 La. 618, 619, 73 So. 2d 781, 782 (1953) (emphasis added).
But some recent cases have held that adherence to this standard does not always relieve the
physician of liability for negligence. See infra note 70 and accompanying text.
6. See supra notes 2 and 5.](ViewImageLocal?handle=hein.journals/loyolr21&div=16&collection=&method=preview&ext=.png&size=3)
What Is HeinOnline?
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most
Medical Malpractice: A Move toward Strict Liability
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most