Mod 4

Question 1

What is professional negligence?

Answer 1

Negligence by a professional where the standard of care incorporates professional standards (customary/accepted practices, guidelines), and the focus is often on duty + breach.

Question 2

What prior defenses were discussed before returning to negligence elements here?

Answer 2

Contributory negligence, comparative negligence, assumption of the risk, and immunities.

Question 3

Which negligence elements are emphasized in professional negligence, and why?

Answer 3

Duty and breach, because professional negligence uses a profession-specific standard of care and typically requires a relationship creating duty.

Question 4

How does ordinary negligence generally measure duty/breach?

Answer 4

By the reasonable person under the circumstances standard (including circumstances and sometimes customary practice evidence).

Question 5

How do customary practices relate to the standard of care in negligence generally?

Answer 5

They can be evidence of what a reasonable person would do; noncompliance can suggest breach, compliance can suggest no breach (but not always conclusive).

Question 6

Key difference #1 between professional and ordinary negligence?

Answer 6

Standard of care: professional negligence judges the defendant by what a minimally competent professional would do under customary/accepted practices in similar circumstances.

Question 7

Key difference #2 between professional and ordinary negligence?

Answer 7

Relationship requirement: professional negligence duty typically arises from a professional relationship (e.g., doctor–patient, attorney–client).

Question 8

Key difference #3 between professional and ordinary negligence?

Answer 8

Experts: expert testimony is generally required to establish standard of care + breach (and often causation/harm), unless an exception applies.

Question 9

What are the two broad duty categories discussed in 1L torts that this lecture referenced?

Answer 9

(1) General duty everyone owes everyone else not to create unreasonable risk of harm; (2) duty arising from special relationships/circumstances.

Question 10

Why does professional negligence fall into the “relationship” duty category?

Answer 10

Because the duty is created by the professional relationship (e.g., agreeing to treat/represent).

Question 11

Example showing ordinary negligence doesn’t require a relationship?

Answer 11

A driver who runs a red light owes other drivers/pedestrians a duty without any prior relationship.

Question 12

What is medical malpractice?

Answer 12

Professional negligence claims by a patient against a health care provider (and sometimes institutions like hospitals).

Question 13

What relationship is a prerequisite for medical malpractice duty?

Answer 13

A health care provider–patient (doctor–patient) relationship.

Question 14

Medical malpractice standard of care (general statement)?

Answer 14

What a minimally competent health care provider would do in similar circumstances using reasonable diligence, skill, competence, prudence.

Question 15

What kinds of “professional standards” help establish medical standard of care?

Answer 15

Customary/accepted medical practices and clinical/practice guidelines (among others).

Question 16

Why is expert testimony generally required in medical malpractice?

Answer 16

To explain and establish the medical standard of care for the situation and whether it was met/breached (and often causation).

Question 17

What is legal malpractice?

Answer 17

Professional negligence claims by a client against their attorney based on failure to meet the professional standard of care.

Question 18

Legal malpractice standard of care (general statement)?

Answer 18

What a minimally competent attorney would do in similar circumstances, informed by customary practices, ethical rules, and bar requirements.

Question 19

Why are experts generally required in legal malpractice cases?

Answer 19

To establish the professional standard of care and whether it was breached (often also causation), unless an exception applies.

Question 20

Downer v. Veilleux—basic facts?

Answer 20

Plaintiff had serious injuries (including a broken neck that didn’t heal properly) and sued the doctor for malpractice.

Question 21

Downer v. Veilleux—key rule point?

Answer 21

Bad results/mistakes alone ≠ breach; plaintiff must show harm was caused by lack of skill/knowledge ordinarily possessed by physicians in that branch.

Question 22

Downer v. Veilleux—what must the plaintiff generally provide?

Answer 22

Expert testimony that the defendant’s treatment was something other than what an average, reasonably skillful physician would do.

Question 23

Downer v. Veilleux—outcome and why?

Answer 23

Directed verdict for defendant upheld because plaintiff’s expert did not establish performance below what a reasonably skillful doctor would do in similar circumstances.

Question 24

Walski v. Tiesenga—what issue did the case illustrate?

Answer 24

How professional standards/customary accepted practices become part of the standard of care, and what expert testimony must show.

Question 25

Walski v. Tiesenga—surgery dispute described?

Answer 25

Thyroid removal: whether surgeon should locate/segregate certain nerves before removing the thyroid.

Question 26

Walski v. Tiesenga—why did plaintiff’s expert testimony fall short?

Answer 26

Expert described what he would do, not that it was a generally accepted practice under the circumstances.

Question 27

Walski v. Tiesenga—what additional point did the court emphasize?

Answer 27

Medicine isn’t an exact science; it involves discretion, and professional standards must be shown as accepted practice, not just a personal preference.

Question 28

Hall v. Hilbun—what major doctrine did it discuss?

Answer 28

The locality rule and shifting toward a national standard with a local component.

Question 29

What is the locality rule (as described)?

Answer 29

Standard of care compares doctor to what a minimally competent doctor in the same geographic area would do; experts often must be local/familiar with local customs.

Question 30

Why was the locality rule criticized (per lecture)?

Answer 30

It could make it hard for plaintiffs to find experts, because local doctors may be reluctant to testify against local colleagues.

Question 31

What standard did Hall v. Hilbun adopt?

Answer 31

A national standard of care (same specialty/field across the U.S.) with a local component tied to available resources.

Question 32

What is the “local component” under Hall’s approach?

Answer 32

Factoring in facilities, equipment, resources, and practical limitations reasonably available to the doctor.

Question 33

Example of how resources affect the standard of care under Hall?

Answer 33

Not malpractice to fail to order a treatment/assessment if the needed equipment isn’t available locally—though referral may be appropriate.

Question 34

Why did Hall’s standard matter procedurally in that case?

Answer 34

Trial court excluded plaintiff experts for lack of local familiarity; the supreme court reversed and remanded for new trial under the national/local standard.

Question 35

What did Hall say about expert qualifications generally?

Answer 35

Expert must be qualified by knowledge, skill, experience, training, or education.

Question 36

How are experts used differently in ordinary negligence vs professional negligence?

Answer 36

Ordinary negligence: experts often for causation/damages, not to define the basic standard of care; professional negligence: experts generally needed to define standard + breach.

Question 37

Car/bicycle example—what does it show about ordinary negligence?

Answer 37

Jury can decide reasonableness (driver pulled out, hit cyclist) without expert testimony on standard of care/breach.

Question 38

Spleen-removal example—what does it show about medical malpractice?

Answer 38

Plaintiff generally needs an expert to establish what a minimally competent physician would do and whether removing the spleen breached that standard.

Question 39

What is the common knowledge exception?

Answer 39

No expert required when negligence is so obvious it lies within common knowledge of lay jurors.

Question 40

Sponge-left-in-patient example—how does it relate to common knowledge exception?

Answer 40

Lay jurors can infer breach (minimally competent doctor removes sponges), though experts may still be needed for causation (sponge caused infection) if disputed.

Question 41

How does res ipsa loquitur relate to professional negligence and experts?

Answer 41

In some cases it helps infer negligence; experts may be unnecessary for breach when the injury ordinarily doesn’t occur without negligence and defendant had control.

Question 42

Ybarra v. Spangard—why was it mentioned?

Answer 42

Example where res ipsa applied: patient had surgery, later severe arm pain; exclusive control during surgery supported inference of negligence.

Question 43

Hodges v. Carter—what standard did it describe for attorneys?

Answer 43

Attorney must possess the degree of learning, skill, and ability ordinarily possessed by similarly situated attorneys.

Question 44

Hodges v. Carter—core facts?

Answer 44

Attorney served out-of-state insurers via insurance commissioner, a long-standing customary practice; defendants challenged legality; service deemed improper by court.

Question 45

Hodges v. Carter—why no malpractice despite losing the case?

Answer 45

Attorneys followed a customary practice not previously called into doubt; not liable for mere error of judgment on unsettled law when acting in good faith.

Question 46

Statute-of-limitations hypothetical—when might no expert be needed for breach?

Answer 46

Missing a clear filing deadline after agreeing to file is within common knowledge; expert may still be needed for case-within-a-case causation.

Question 47

In legal malpractice, what is “case-within-a-case” style causation (as implied)?

Answer 47

Plaintiff must show they would have had a viable claim/recovery if the attorney had acted competently (often requiring expert analysis).

Question 48

Lewis v. Rodriguez—what question did it address?

Answer 48

Whether a polygraph examiner is judged under professional negligence or ordinary negligence.

Question 49

Lewis v. Rodriguez—what factors supported treating the polygrapher as a professional?

Answer 49

Specialized training, apprenticeship, job requires judgment/discretion, and licensing requirements.

Question 50

What’s the practical effect of classifying someone under professional negligence (Lewis)?

Answer 50

Standard becomes what a minimally competent professional would do, and expert testimony is generally required unless exceptions apply.

Question 51

What are the similarities between professional and ordinary negligence?

Answer 51

Same five elements: duty, breach, cause-in-fact, proximate cause, and damages.

Question 52

What are the three big differences summarized at the end?

Answer 52

(1) Relationship-based duty, (2) profession-specific standard of care, (3) experts required for standard/breach (often causation/harm) unless exceptions.

Question 53

When are experts generally not required in professional negligence?

Answer 53

When the case fits the common knowledge exception, or sometimes when res ipsa loquitur supports an inference of negligence.

Question 54

How do “professional standards” become part of the legal standard of care?

Answer 54

The profession’s customary/accepted practices and guidelines form the professional (medical/legal) standard, which courts use to define the legal standard of care.

Question 55

Big-picture takeaway for exams: how do you spot professional negligence?

Answer 55

Look for (1) professional role, (2) relationship creating duty, (3) specialized standards beyond “reasonable person,” and (4) need for expert testimony (unless obvious).