Standard of Care

Posted on May 14, 2008 by Brien Roche
Standard of Care
In most negligence claims, the issue of standard of care arises. In an automobile accident case, the standard of care is defined by the traffic regulations. For instance, the traffic regulations dictate that you shall not enter an intersection on a red light. That regulation establishes the standard of care by which all persons are bound in terms of passing through an intersection. In other contexts there may be building codes or other state or local codes that establish the standard of care by which property owners are bound. Those codes can be the basis upon which a negligence case may be founded because they establish the standard of care to which the defendant is held. If the defendant has violated that code, then that may be evidence of a breach of duty by that defendant. If that breach resulted in damage to you, then you may have a basis for a negligence claim against the property owner.

The concept of standard of care becomes especially important in certain types of professional liability claims—medical malpractice claims, legal malpractice claims, or architectural malpractice claims. In those types of claims, the plaintiff has to establish what the standard of care is. The standard of care is established by means of the presentation of evidence by experts in that field. For instance, if in the course of your heart surgery the surgeon happens to penetrate your coronary artery with a catheter and you suffer irreparable damage, has the standard of care for that procedure been violated? That is not something a nonmedical person could answer. Therefore, it is not something that a group of jurors could answer as nonmedical people unless they hear evidence from a medical expert establishing what the standard of care is.

The standard of care in that particular instance may be that the surgeon, through the use of radiological instruments, should have been able to tell where the catheter was going and therefore should have known when he or she was about to puncture the arterial wall. The surgeon could have avoided the rupture if he or she had been attentive to the radiological instrument that showed where the catheter was.

In that instance, the standard of care evidence presented by the plaintiff may show that the doctor was negligent in puncturing the arterial wall with that catheter. You can rest assured that the defendant doctor will bring in his own medical expert who will refute that and who will state that there is no breach of the standard of care in this circumstance. It was simply an unfortunate accident that happened and that there was no negligence on the part of the doctor.
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Product Liability

Posted on May 13, 2008 by Brien Roche
Product Liability
A product liability claim is one in which a person contends that a particular product is defective in some way and that defect has caused injury. You may recall a famous product liability claim that was brought against Ford Motor Company many years ago relating to its Pinto automobiles. Ford made an engineering decision to place the gas tank on the Pinto in the rear of the vehicle, even though it knew that placing the gas tank in this location could result in serious injury to the occupants if the vehicle was involved in a rear end collision.

Documentation was produced during litigation that Ford knew or should have known of that risk, yet made a conscious decision to continue to keep those vehicles on the road because it felt the overall financial benefit would weigh in its favor, even if it had to pay several million dollars in claims as a result of injuries.

The jury in one of those cases returned a very substantial award against Ford Motor Company for compensatory damages for the injuries suffered by the plaintiff. The jury also awarded substantial punitive damages to punish Ford for its wrongful conduct in not taking the vehicles off the road or warning the public of the dangers associated with that vehicle.

Another fairly well known product liability case involved a McDonald’s restaurant. In that case, an elderly woman purchased a cup of coffee from a drive-in window at McDonald’s. She apparently placed that cup of coffee between her legs and subsequently spilled the coffee. The case received a good deal of attention because it was touted by the insurance industry as an example of a runaway jury verdict. In fact, the insurance industry failed to disclose to the public that in that particular case the plaintiff had made an attempt to settle the case simply for her medical bills, which were substantial because she was hospitalized for over a week. McDonald’s, however, refused to entertain any reasonable settlement offers.

The evidence that was presented at trial was that McDonald’s had been warned on many occasions that their coffee was approximately twenty degrees hotter than what was recommended by the local health department and was so hot that it could cause third degree burns. In fact, the coffee served by McDonald’s was not just hot (135ÌŠ to 140ÌŠ), but at 180ÌŠ to 190ÌŠ was able to cook through all layers of skin within seven seconds. McDonald’s admitted that its coffee was 40ÌŠ to 50ÌŠ hotter than is fit for human consumption and knew that more than seven hundred people, including babies, had been burned by its coffee. McDonald’s, however, refused to reduce the temperature of its coffee because it felt it sold more coffee at that level than it would at a lesser temperature.

The plaintiff in this case was an elderly woman who suffered third degree burns over six percent of her body. The state where that case was tried was a comparative negligence state (see p.133). As such, the jury, having found the plaintiff partially negligent because of how she carried the coffee, reduced her verdict by a proportion that was due to her own negligence.

In addition to awarding a compensatory damage amount, the jury also awarded punitive damages against McDonald’s equal to its gross receipts of two days of coffee sales in order to teach it a lesson. The actual verdict in that case was $200,000 for compensatory damages and $2.7 million dollars in punitive damages. The punitive damage award was reduced by the court on a posttrial motion to $480,000. As a result of that verdict, McDonald’s reduced the temperature of its coffee.

A product liability claim may be founded upon negligence principles, but it may also raise a legal theory known as breach of warranty. Within the sale of a product there is either an express or implied warranty that the product is reasonably fit for the purpose for which it is sold. If it turns out that the product is not reasonably fit for that purpose, then that may constitute a breach of warranty and may give rise to a claim for damages if someone is injured as a result of that breach of warranty. Breach of warranty claims technically are contract claims, but they may be asserted as part of a product liability lawsuit.

Normally, in a product liability claim, the plaintiff will need to present some expert testimony as to what the defect is in the product. For instance, in the Ford Pinto case, the plaintiff had to present expert testimony from engineers to establish that the placement of the gas tank in the rear of the vehicle was dangerous and was not good engineering.
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