Analyzing Tort Essay Exam Problems
Tort law is primarily concerned with injuries to people. These injuries may be caused by the actions of other human persons, corporations, governmental entities, and other legal actors. Persons may be injured through direct action, such as a punch in the mouth, or through passive instrumentalities, such as guns or defective products. In answering a tort law examination the student must identity the injured persons, the torts related to these injuries, possible defendants, defenses, etc. In tort practice the lawyer must also analyze the cost effectiveness of the litigation. Defendants identified on a torts' examination might not be sued in a real case. This checklist is designed to help analyze fact situations and to develop a written analysis that is suitable for an examination.
You should make these lists, not just run through them in your mind. You should outline your answer, write it out, and then REWRITE IT TO ELIMINATE EXCESS VERBIAGE! Remember, brief is not just a form of underwear!
1) List the people in the problem.
Identifying the people helps to assure that you do not miss any potential parties. It is more important to identify all the parties than to exhaustively list the torts and miss a party.
2) Identify the injured people.
This includes the injured persons who have not been named in the problem, such as family members. Every injured person is a potential plaintiff.
3) Identify the relationships between the injured persons and all other persons, injured or uninjured.
The key to analyzing these relationships is identifying those persons who owed a duty to an injured person. If there is no duty, there can be no tort. For those who owed a duty, determine if they arguably breached the duty, triggering a tort analysis.
4) Identify unnamed persons or legal entities who breached a duty to the plaintiff.
This analysis is to identify employers, building owners, and others who may have breached a duty to the plaintiff through their own actions or the actions of their agents.
5) Identify instrumentalities that contributed to the harm.
Was a person injured by a product? Was the product defective? Who manufactured the product, sold it, repaired it, etc.?
6) Was the person directly injured or injured as a bystander?
7) For each situation in which you have identified a possible breached duty, determine if the defendant has an argument as to why he did not owe the plaintiff a duty.
This is usually an immunity issue, but it may also involved mistaken identify. For example, the plaintiff may mistakenly identify a physician who never had a relationship with the patient.
8) For each situation in which you have identified a possible breached duty, determine if the defendant has an argument as to why he did not breach his duty to the plaintiff.
9) Determine the theory of causation for each breached duty.
Is there but for (proximate) cause? Is this a product theory? Is this substantial factor causation?
10) What is the defendant's theory about causation?
Are there intervening causes? Were the consequences foreseeable?
11) What are the defenses?
Is there comparative negligence? Assumption of risk? Misuse of a product? Try to anticipate every possible defense to the tort.
10) What are the damages suffered by each injured person?
Are the injuries direct or derivative (consortium)? Are they permanent? Are there future wage claims? Medical care costs? Pain and suffering? Etc.? (Second semester!)
11) How are the actions of the defendants related
Is there joint and several liability?
12) Have you presented the strongest torts?
Are your theories sound and supported by specific facts in the problem?
13) HAVE YOU FOLLOWED THE INSTRUCTIONS?
Have you gone over the word count? Have you ignored instructions limiting the parties or actions to be considered? Did you put your number on each page? Do not forget to turn in the exam!
14) Have you checked your answer against your lists of parties and torts and outline?
There are always a few exams where major issues are dropped inadvertently.
Samanta & Samanta: Medical Law Concentrate
Chapter 2: Outline answers to essay questions
“Despite Lord Browne Wilkinson’s obiter comments in Bolitho, the Bolam test remains an insurmountable hurdle for claimants to succeed in clinical negligence actions”.
Discuss this statement with reference to case law.
The focus of this question is upon an evaluation of the standard of care expected in medical negligence cases. A critical evaluation of the Bolam test is required as well as a consideration of the actual or potential effect of Bolitho.
Remember that in cases of medical negligence all three components, namely a duty of care, breach of duty and causation, have to be proved by the claimant on the balance of probabilities. Establishing a duty of care in a doctor and patient relationship is not usually difficult and will exist in most situations. However, establishing breach of duty and causation can be more problematic.
With regard to breach of duty, the question that arises is whether or not the claimant received a standard of medical care that was acceptable in the circumstances. If the answer to this is yes, then the claimant will fail. If the answer is no, then the case continues to the next stage in respect of establishing causation.
The traditional test used to establish breach of duty is to measure the standard of care received against the Bolam standard. You might wish to recall McNair J’s comments in this case, encapsulated in the principle that a doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of professionals skilled in that particular art. This means that if a responsible body of professionals would support the defendant’s action then that standard (according to the Bolam test is acceptable (even if there is a body of opinion that is to the contrary).
The Bolam test has come under considerable criticism in the academic literature on the basis that the standard is set by the medical profession, rather than by the court. The test has been perceived as being too high a burden for claimants, too deferential to doctors and lacking in external objectivity. Consider these criticisms and also consider how the Bolam test has been applied in practice, such as in the context of diagnosis (Maynard) and information disclosure for the purposes of consent to treatment (Sidaway). The latter is an area where medical expertise is not essential as this has been regarded principally as being a patient-focused matter.
In the case of Bolitho, the Bolam test was commented upon in the House of Lords. Remember, however, that the ratio of Bolitho concerned causation and not the standard of care. Lord Browne Wilkinson’s obiter comments qualified the Bolam standard by stating that the body of opinion relied upon should have a logical basis, which means it should be capable of withstanding logical analysis and external scrutiny. In other words, if there were two differing bodies of opinion regarding the standard of care, it is for the court to scrutinise these and accept the one that is more plausible. So whilst Bolitho may not have altered the substance of the Bolam test, it has applied a gloss to it. Consider also the cases of Reynolds and Marriott where the court took a more interventionist stance towards the application of the Bolam standard. You may wish to provide your own critical thoughts as to how you see the Bolam standard in the balance and whether Bolitho has modified the test sufficiently so that it is less difficult for claimants to overcome, and draw your conclusions on the basis of your discussions. Finally remember that causation must still be proved to succeed in medical negligence.