Bresler v. Nugent’s Empirical Analysis

Citation profile

6 state decisions

Most-quoted passages

The sentences later courts lift from this opinion, ranked by how many decisions quote each — the parts of the opinion doing the work. These counts are smaller than the citation total above because most of the 7 citing decisions cite the case generally; a passage count includes only decisions quoting that exact language verbatim.

1. “"It is the nature of the duty breached that should determine whether the action is in tort or in contract. To determine the duty one must examine the patient-physician relationship. It is true that usually a consensual relationship exists and the physician agrees impliedly to treat the patient in a proper manner. Thus, a malpractice suit is inextricably bound up with the idea of breach of implied contract. However, the patient-physician relationship, and the corresponding duty that is owed, is not one that is completely dependent upon a contract theory. There are instances in which the relationship exists though there is clearly no contractual relationship between the patient and the physician. Thus, the patient may be incapable of contracting or a third person may have contracted with the physician for the treatment of the patient. Even in those instances in which no contract is present the physician still owes a duty to the patient. The duty of due care is imposed by law and is something over and above any contractual duty. Certainly, a physician could not avoid liability for negligent conduct by having contracted not to be liable for negligence. The duty is owed in all cases, and a breach of this duty constitutes a tort. On principle, then, we consider a malpractice action as tortious in nature whether the duty grows out of a contractual relation or has no origin in contract. This view that malpractice suits are tortious in nature probably represents the majority view. (Em”

   3 later decisions quote this exact passage
   e.g. 163 So. 2d 186 - Brooks v. Robinson · 142 So. 2d 585 - Phelps v. Donaldson

2. “"The position taken above by the United States Fifth Circuit Court of Appeals was identical to the position taken by the Second Circuit Court of Appeal of Louisiana, in the case of Mills v. Doty, 116 So.2d 710 . In this case, a patient brings an action against a chiropractor for allegedly injuring his back while receiving treatment and the suit was not brought until after one year from the date of the accident. The court looked upon this suit as a tort action and dismissed plaintiff's action. "It is the opinion of this court that the cause of action which the plaintiffs pursue and in which they seek to recover for injuries and/or damages allegedly sustained by Freda Bresler while she was a customer at Durwood Nugent's hair dressing establishment is most definitely an action sounding in tort and that the one year prescriptive period provided for in Article 3536 of the Louisiana Civil Code, LSA, is most applicable. The application of the tort rather than the contract statute of limitation by the district court in the present case was well reasoned and justifiable; therefore the plea of prescription was properly sustained."”

   1 later decision quote this exact passage
   e.g. 142 So. 2d 585 - Phelps v. Donaldson

3. “"The plaintiffs filed their suit in the district court on October 11, 1960, being some two years after the alleged hair treatment given to Freda Bresler on October 28, 1958. The defendant, taking the position that this suit was one in tort, filed a plea of prescription of one year based on Article 3536 of the Louisiana Civil Code, LSA. The plaintiffs take the position that this is a suit in contract and subject to the ten year prescriptive period, LSA-C.C. art. 3544. The suit was dismissed by the lower court on the plea of one year prescription interposed by the defendant on the ground that the action was in tort. The plaintiffs have appealed."”

   1 later decision quote this exact passage
   e.g. 142 So. 2d 585 - Phelps v. Donaldson