Torts Question

(Study Tips, Dealing With Stress, Maintaining a Social Life, Financial Aid, Internships, Bar Exam, Careers in Law . . . )
kaiser
Posts: 2940
Joined: Mon May 09, 2011 11:34 pm

Re: Torts Question

Postby kaiser » Tue Nov 29, 2011 2:10 am

betasteve wrote:
kaiser wrote:To figure out if the doctor is the but-for cause, you need to know more about the pill. Would just one pill be fatal (you said that these are pills that the patient "should not have")? If one pill would be fatal, then it won't matter that the patient downed 20 at once, since the first one alone would have killed him anyway.

And in terms of proximate cause, it would be in no way reasonably foreseeable that the patient would take a handful of pills if the doctor specifically told him to just take 1, and the literature that accompanies the prescription verifies the doctor's orders to only take 1.

You've got this backwards, and wrong.

But-for - yes... But for the Dr. prescribing the pills, the patient wouldn't have taken them.

Proximate - depends on the pill. If it was oxycotin or something that has a history of being abused or used for suicide, then I think it may be in the realm of foreseeability... if the guy overdosed on Rx-strength aleve, that seems less likely to be foreseeable.


We still don't know if its but-for cause. The patient may have had a stash of dangerous pills waiting in his medicine cabinet that he would have taken instead had the doctor refused to give him any meds. And if the guy was truly suicidal, then nothing is really a but-for cause, since no matter what, he would have gone and killed himself anyway, but just done it in another fashion. Of course but for the doctor prescribing those particular pills, the patient wouldn't have OD'ed on those particular pills. But I'm looking at his death a little more broadly. The question isn't "But for the doctor's actions, would he have still OD'ed on those pills?". The question is "But for the doctor's actions, would the patient be alive right now?". And the answer to that has to be "we don't know".

And the only way it is reasonably foreseeable that he would OD is if the doctor had some hint or shred of evidence that would tip him off about the patient. But doctors prescribe heavy pain medications all the time. Hell, my dad just had shoulder surgery and got Oxy from the doc. Perhaps doctors do some prescreening of patient history, including mental health, to determine if distribution of such a drug is proper (and failure to do such screening may in itself be negligence). But aside from such a glitch in patient history, I still don't think its reasonably foreseeable.

User avatar
Extension_Cord
Posts: 592
Joined: Mon Sep 05, 2011 3:15 pm

Re: Torts Question

Postby Extension_Cord » Tue Nov 29, 2011 2:18 am

target wrote:
$peppercorn wrote:
ph14 wrote:
Extension_Cord wrote:New question:

Doctor prescibes pills to patient that he should not have, patient overdoeses on the pills and committs suicide.

actual cause?
proximate cause?


Actual cause-- may or may not be met. If the patient would have overdosed had the correct pills been issued anyways, then but-for cause might not be met. But if the pills he accidently prescribed were more powerful and killed him whereas the correct ones wouldn't have, then but-for cause is met.

Proximate cause is trickier. Is it reasonably foreseeable that a patient would overdose on the pills? If they hadn't shown any suicidal tendencies, then it probably isn't reasonably foreseeable. The kind of harm that is foreseeable for mis-prescribing pills is that the patient would get adverse reactions while taking the required dosage.


I think the restatement says Suicide is generally unforeseeable and is a superseding cause unless the defendant's tortious conduct induces a uncontrollable impulse or a there is Special relationship that includes knowledge of the π's risk of suicide.

My professor barely touched on it so I may not be completely accurate.


Am I crazy to think both of you are correct? I do remember that suicide is an intervening cause. Although you can argue that the doctor knows the patient's medical record and still prescribe him enough drugs to overdose.


In this hypo, the doctor did not know the patients medical history and prescribed a prescription for lots of drugs that the patient later used to committ suicide, suicide note and all. The doctor did not even meet the patient, he just wrote it out based off a telephone call.
Last edited by Extension_Cord on Tue Nov 29, 2011 2:20 am, edited 1 time in total.

kaiser
Posts: 2940
Joined: Mon May 09, 2011 11:34 pm

Re: Torts Question

Postby kaiser » Tue Nov 29, 2011 2:20 am

Extension_Cord wrote:
target wrote:In this hypo, the doctor did not know the patients medical history and prescribed a prescription for lots of drugs that the patient later used to committ suicide. The doctor did not even meet the patient, he just wrote it out based off a telephone call.


Again, we don't know the properties of this drug. If its Oxy, and he gave it out without looking at patient history and without meeting the patient, its probably medical malpractice. If it was some super weak allergy med., the answer is likely very different.

User avatar
Extension_Cord
Posts: 592
Joined: Mon Sep 05, 2011 3:15 pm

Re: Torts Question

Postby Extension_Cord » Tue Nov 29, 2011 2:21 am

kaiser wrote:
Extension_Cord wrote:
target wrote:In this hypo, the doctor did not know the patients medical history and prescribed a prescription for lots of drugs that the patient later used to committ suicide. The doctor did not even meet the patient, he just wrote it out based off a telephone call.


Again, we don't know the properties of this drug. If its Oxy, and he gave it out without looking at patient history and without meeting the patient, its probably medical malpractice. If it was some super weak allergy med., the answer is likely very different.


Anti-depressant.

kaiser
Posts: 2940
Joined: Mon May 09, 2011 11:34 pm

Re: Torts Question

Postby kaiser » Tue Nov 29, 2011 2:26 am

Extension_Cord wrote:
kaiser wrote:
Extension_Cord wrote:
target wrote:In this hypo, the doctor did not know the patients medical history and prescribed a prescription for lots of drugs that the patient later used to committ suicide. The doctor did not even meet the patient, he just wrote it out based off a telephone call.


Again, we don't know the properties of this drug. If its Oxy, and he gave it out without looking at patient history and without meeting the patient, its probably medical malpractice. If it was some super weak allergy med., the answer is likely very different.


Anti-depressant.


Come exam time, just argue it both sides. Say that it wasn't reasonably foreseeable for X reason, and perhaps possibly foreseeable for Y reason.

User avatar
Extension_Cord
Posts: 592
Joined: Mon Sep 05, 2011 3:15 pm

Re: Torts Question

Postby Extension_Cord » Tue Nov 29, 2011 2:28 am

kaiser wrote:Come exam time, just argue it both sides. Say that it wasn't reasonably foreseeable for X reason, and perhaps possibly foreseeable for Y reason.


You have to do that anyways, but you do have to pick one dont you?

kaiser
Posts: 2940
Joined: Mon May 09, 2011 11:34 pm

Re: Torts Question

Postby kaiser » Tue Nov 29, 2011 2:34 am

Extension_Cord wrote:
kaiser wrote:Come exam time, just argue it both sides. Say that it wasn't reasonably foreseeable for X reason, and perhaps possibly foreseeable for Y reason.


You have to do that anyways, but you do have to pick one dont you?


Exam tip #1: It is the analysis that matters, not which side of the fork in the road you decide to continue with

As long as you flesh out both sides, you merely choose one as a formality based on which argument you find more convincing. I've spoken to professors who say they aren't interested at all in which way you go on the truly ambiguous issues. They only want to see that you fleshed out the issues and arguments sufficiently. I can't describe to you the number of times in which my analysis boiled down to "I don't know" or "we need more details". And there is nothing wrong with that.

User avatar
Extension_Cord
Posts: 592
Joined: Mon Sep 05, 2011 3:15 pm

Re: Torts Question

Postby Extension_Cord » Tue Nov 29, 2011 2:38 am

kaiser wrote:
Extension_Cord wrote:
kaiser wrote:Come exam time, just argue it both sides. Say that it wasn't reasonably foreseeable for X reason, and perhaps possibly foreseeable for Y reason.


You have to do that anyways, but you do have to pick one dont you?


Exam tip #1: It is the analysis that matters, not which side of the fork in the road you decide to continue with

As long as you flesh out both sides, you merely choose one as a formality based on which argument you find more convincing. I've spoken to professors who say they aren't interested at all in which way you go on the truly ambiguous issues. They only want to see that you fleshed out the issues and arguments sufficiently. I can't describe to you the number of times in which my analysis boiled down to "I don't know" or "we need more details". And there is nothing wrong with that.


I have a really hypo Im working on, mind taking a look at my response?

kaiser
Posts: 2940
Joined: Mon May 09, 2011 11:34 pm

Re: Torts Question

Postby kaiser » Tue Nov 29, 2011 2:40 am

I'm sort of short on time due to finals coming up, but why not just post it on the forum and get all the feedback you can. I'll def stop in and take a quick look if I can.




Return to “Forum for Law School Students”

Who is online

Users browsing this forum: axel.foley and 8 guests