Bernard v. Char’s Empirical Analysis

Citation profile

3 federal appellate · 3 district · 16 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 26 citing decisions cite the case generally; a passage count includes only decisions quoting that exact language verbatim.

1. “expert testimony is not critical to demonstrate the amount of information a patient needs in order to intelligently decide between two treatment options. The decision as to what procedure to undergo is ultimately the patient’s; to impose a standard of disclosure dictated by experts would be to undermine the decision-making power of patients in similar situations. Therefore, in proving the element of duty for informed consent purposes, a patient is •not required to produce any expert medical testimony regarding what other reasonable dentists would have disclosed under the same or similar circumstances.”

   3 later decisions quote this exact passage
   e.g. O'NEAL v. Hammer · Barcai v. Betwee

2. “In Leyson v. Steuermann, supra, this court opted to apply a “modified objective standard” that determines causation “from the viewpoint of the actual patient acting rationally and reasonably.” As pointed out by the authors of Prosser and Keeton [on Torts, § 32 (5th ed. 1984) [hereinafter Prosser and Keeton]], this approach is a reasonable compromise between the subjective and objective standards, both of which have their disadvantages: As a compromise, an objective-subjective mix might reasonably be adopted, substituting an “ordinary” patient for the “reasonable” one, and taking account of the patient’s individual fears and beliefs in considering “the patient’s position.” Such an approach would maintain a basically objective structure for the issue, leaving it capable of reasoned adjudication, yet would also protect the basic individuality and autonomy of idiosyncratic patients who are in fact injured by insufficient disclosure.”

   1 later decision quote this exact passage
   e.g. Bernard v. Char

3. “[i]n the ordinary negligence case[,] the jury can determine whether there has been a breach of defendant’s duty to the plaintiff on the basis of their everyday experience, observations^] and judgment. The ordinary negligence case will not require expert opinion evidence to delineate acceptable from unacceptable standards of care. However, in the medical negligence case, lay jurors are ill prepared to evaluate complicated technical data for the purpose of determining whether professional conduct conformed to a reasonable standard of care and whether there is a causal relationship between the violation of a duty and an injury to the patient. Therefore, expert opinion evidence is generally required to aid the jury in its tasks.”

   1 later decision quote this exact passage
   e.g. Exotics Hawaii-Kona, Inc. v. E.I. Du Pont De Nemours & Co.