Heath v. Swift Wings, Inc.

40 N.C. App. 158 (1979).

The Heath estate for deceased Mrs. Heath and her deceased son is the plaintiff. The estate for deceased Mr. Heath and Swift Wings, Inc. is the defendant.


What standard of care do we use for somebody who is expected to be a professional in their field?


One who engages in a “profession must exercise the requisite degree of learning, skill, and ability of that calling with reasonable and ordinary care.”


The trial court used a subjective standard and gave improper instructions to the jury. New trial granted.


Mr. Heath was the pilot of an aircraft where he, his wife, his son, and a friend Vance Smathers were involved in a deadly crash. None survived. The only remaining relation was their daughter, who was not involved in the flight.

Prior to the flight, Mr. Heath shifted around the luggage, loaded the passengers, walked around the plane making checks before heading to the runway to take off. He was able to take off but did not reach a considerable height due to flight speed.

Expert testimony said at trial that Mr. Heath should have used flaps to aid in takeoff or landed in a nearby cornfield in which all would have survived.

Finally, the trial court jury found him not guilty of negligence.


The instruction provided to the jury was improper because it took into account a prudent pilot with similar training and experience as Mr. Heath. This introduces a subjective element to an objective standard. Therefore, no matter his training (whether it be great or poor), he would be held to a standard of objectively prudent pilots applicable to all pilots.


The standard for a professional is an objective one within their field. A doctor must act as an objective doctor would, a pilot needs to act as an objective pilot would, etc.

Additional Notes

Here, we have a pilot who probably had poor pilot skill. They should be held to the standard of the prudent pilot in their field. However, what do we do for a pilot who has superior skill? In some cases. For instance, if a person holds themselves out as having superior skills or talents, then they can fall under a different, higher standard.

We also don’t want to use the word average because 50% of pilots would automatically fail to meet that standard. Instead, we have a minimum standard where most in that field can reach.

Hodges v. Carter

239 N.C. 517 (1954).

Carter and Topping are defendants. Hodges is the plaintiff. Plaintiff lost and appealed.


Were the lawyers negligent in their duty to provide competent service.


An attorney who acts in good faith and in an honest belief that his actions were in the best interests of their client, is not answerable for an error of judgement that had not been settled by the court of last resort.


The attorneys had acted in good faith and honest belief on an issue that had not yet been decided. Thus, they were not negligent. Affirmed.


Hodges had a store that burned down. Afterwards he filed several insurance claims, all of which denied him payment. So, he hired a couple of lawyers who sent a service of process through the mail to the insurance companies. Although this was customary at the time, the court dropped the case because the service was done improperly (should not have been done through the mail). So Hodges sued his lawyers (current defendants) for negligent practices.


An attorney can act in good faith if they are working and the case has not been decided yet. However, if the practice is well known and the attorney has not properly acted according to a standard attorney, then they can be found liable.

Here, the attorneys acted in accordance with the local customs at the time. Then, it was fine to send service through the mail and nobody had tested that until that case. Therefore, the attorneys could not be held liable for something that was customary for the attorneys at the time, even if was later deemed as an incorrect practice.

Additional Notes

On call. Did not take any lecture notes. Tomorrow read through Moore page 210.

Boyce v. Brown

51 Ariz. 416 (1938).

Boyce is the plaintiff. Brown is the defendant. Defendant received a favorable directed judgement due to the lack of testimony from the plaintiff.


What the plaintiffs evidence strong enough to support their case to where the directed judgement was in error.


Malpractice requires:

  1. Defendant is presumed to have obtained the skill and learning for a person of their profession. Objective standard.
  2. Acted against or omitted from following a recognized standard
  3. Proof of a standard
  4. Negligence is never presumed
  5. Failure of following standard is established by expert testimony
  6. The expert testimony should not have also deviated from the standard.


The evidence of negligence was lacking, therefore, there was no case. Judgment affirmed.


Boyce was having some ankle problems so she went to the defendant who operated on her and placed a screw in the bone to hold it together. Seven years later she returned with complaints of her ankle. The doctor looked at it, but the treatment did not help her recover. She went to another doctor shortly after who took an x-ray, discovered the screw, and removed it under operation. The plaintiff recovered shortly afterwards.


The testimony of the expert here was inconclusive as to whether the defendant had failed to follow a standard of care. Although the placement of the screw at the time was an applicable standard, the expert witness could not have determined when the screw should have been removed (knowing that the standard is that the screw remains unless there is an issue).

The plaintiff also argued that it was against the standard for the defendant to not perform an x-ray. This is because it was so blatantly obvious that an x-ray should have been taken. The court disagreed though because x-rays are expensive and not so readily an answer to an issue.


  • Standard of care is established by expert testimony
    • Unless it is so obviously negligent that the common knowledge of jurors can see the error.

Additional Notes

A statute of repose does not care when the injury occurs but instead determines when the clock starts running. For the statute of limitations, there is only a six year time frame to bring in the action. However, because of the statute of repose, plaintiffs can bring an action later than the original date (because injury was not visible until later).

Here, Dr. Kent (the treating doctor and expert witness) was a good expert witness because he treated the case.

For a medical profession, customs = the standard of care. However, there are only a few cases where the court has said that the court knows better than the doctors. Telling v. Carey. 1 in 25,000 was not enough to establish that standard of care.

Morrison v. MacNamara

407 A.2d 555 (D.C.C. 1979).

Morrison is the plaintiff and lost in the trial court. He alleged that the instruction was invalid and appealed.


Should the court use a national standard of care or a localized standard of care?


There needs to be a reasonable care and skill by professionals under same or similar circumstances.


A locality rule is too narrow here. There should be a national standard. Reversed.


The plaintiff was in an invasive examination which occurred while he was standing. He fainted and sustained several injuries. The local standard of care was that the examination could occur while a patient was standing. However, the national standard of care was that the patient should have been laying down.


The courts begin by looking at the several options and purposes of rules. First, the locality rule is designed to help medical practices differ from other geographical areas where physicians may not be as experienced (in the past, rural doctors were not as experienced as urban doctors). The court refutes this by saying that the differences between physicians are more limited than ever because of a national accreditation process. Second, there is a rule that says one can use the standard of another locality that is similar to the community in question. Unfortunately this brings up the issue of how to decide which are similar. Finally, there is a national standard of care. The court determines that this standard is best for medical practice because of the advancement of medical education and the standardization of medical accreditation nation-wide.

Here, the defendants admit that they are nationally accredited. Therefore, they should be held to a national, not local, standard of care.


Although this jurisdiction elected to use a nationalized standard of care, several other jurisdictions will differ between locality, similar to locality, or national standards.

Additional Notes

Here, the court said that, at least for the medical lab, there should be the standard of care. National labs (certified) and board certified physicians, they are going to use national standards of care always. Hospitals most of the time will follow a national standard. However, if a rural hospital does not have the same facilities or equipment, they could be held to a locality standard of care.

Scott v. Bradford

606 P.2d 554 (Ok. 1979).

Scott is the plaintiff. Filed for medical malpractice. Lost and appealed.


  1. Whether Oklahoma adheres to the doctrine of informed consent for medical malpractice suits.
  2. If the instructions adequately advised of the defendant’s duty


Patient suing under informed consent must allege and prove

  1. Physician failed to adequately inform of a material risk (Material Risk)
  2. Had they been informed, they would not have accepted treatment (Causation)
  3. Adverse consequences were not made known and there was injury.

Failure to obtain consent is battery. Failure to properly inform is negligence. Informing requires:

  1. Adequate information about the treatment
  2. Available alternatives and
  3. Describing the risks

There are exceptions to informed consent:

  1. Information should be known by everyone
  2. Best interest of the patient’s care
  3. Emergency


There is a new duty on physicians to use informed consent. Here, the jury instructions were rather broad which encompassed the new rule. Affirmed.


Plaintiff had an examination and was referred to the defendant. She filled out the standard consent forms and then carried on with the surgery which caused several complications. These complications resulted in additional surgeries to resolve.

Here argument is that the doctor did not provide informed consent. Had he done so, she would have objected to the surgery.


The court agrees with saying that physicians need to abide by this informed consent doctrine. When it comes to consent, there is not a professional standard, but this new doctrine will be implemented. The court outlines the rules of the doctrine (shown above) and applies it to the current case.


For some instances, there are times when the court deviates from the professional standard of care to adopt a different standard specific to the principle in question.

Additional Notes

This is not a malpractice case because there was no claim about the actions of the doctors surgical performance. Instead, this is talking about the manner of informing the client. Thus, this is an informed consent case.

Why is this negligence and not battery? This is because there was no informed consent. However, she had given consent to the surgery. Had there been no consent given at all, or if it had gone beyond the scope of consent, then it would have battery.

What interest are we protecting with informed consent? We want to protect the bodily autonomy of the plaintiff. Therefore, doctors need to follow this principle of informed consent.

First element: Material Risk

What is a material risk? A risk is considered material if it is likely the affect the patient’s decision. An expert will determine whether this risk is considered material.

However, there are some risks that don’t need to be disclosed. These include obvious risks and emergency. However, another exception of disclosure would be detrimental to the the interest of the patient. We need to be careful with this final exception because if we give it too much credit, then the exception will overpower the rule.

Second element: Causation

“If he had been informed of the risks he would not have consented to the treatment.”

How do we frame causation? Quite simply, if you have told me of the risks, I would not have taken the treatment. This can be seen as causation because the lack of information caused the action.

Is this a subjective or objective test? For an objective test, we would ask, “Would a reasonable person have consented to the treatment if they had the information about the risks?” A subjective test would be asking how the plaintiff would have responded (personal and individualistic).

This isn’t in the casebook, but the court actually used a subjective test. This is because the courts feel like they should protect the bodily autonomy of patients. In other words, keep it personal.

Third Element: Adverse consequences the possibility of which weren’t disclosed, actually came about

In other words, if the risk was not disclosed and the risk occurred, this element will be met.


The plaintiff was winning all through the argument until the final point. That is, the rule would apply “prospectively”. This means that anything previously to this new duty would have been fine. The court is saying that the new rule will be applied in the future.

Moore v. The Regents of the University of California

51 Cal. 3d 120 (1990).

Moore is the plaintiff. He lost in the trial court, won part of his argument in the appellate


How far does informed consent reach?


  1. A physician must disclose personal interests unrelated to the patients heath
  2. Failure to disclose interest may bring rise to action.


“We hold that a physician who is seeking a patient’s consent for a medical procedure must, in order to satisfy his fiduciary duty and to obtain the patient’s informed consent, disclose personal interests unrelated to the patient’s health, whether research or economic that may affect his medical judgment.”


Moore was diagnosed with leukemia and underwent several tests to figure out what was wrong with him. Turns out that the cells from his spleen were very medically useful. However, the doctor failed to inform him of the usefulness and so, when he moved away, he returned for additional treatment not knowing the purpose his tests were doing, when they were no longer testing him for his benefit.


Although it is important for medical practitioners to conduct research, the patient is entitled to know the use of the treatment. If he does not know the use, he may be entitled to action

Additional Notes

There are some variations to the informed consent as described in Scott. This Moore case is one of them. When the doctor has some research or economic interests, they need to disclose that to the patient. This is because if the interest is against the well-being of the patient, they need to obtain consent.

Another case outlining a variation is from Iowa. A physicians experience or training can be determined a material risk to the patient. Thus, it would need to be disclosed.

Anderson, should a person disclose they had just completed rehab for substance abuse?

What about a surgeon who doesn’t disclose they were infected with HIV?

This can also include attorneys. If an attorney says that they had never lost a case, then loses that case, would the client be entitled to action against them? Court says no.

Medical Malpractice Reforms

Because of all these issues, there are several attempts to reform informed consent to protect both patients and doctors.

How to determine an expert?

  1. List out the person who will testify including qualifications
    • Plaintiff needs find this person within 180 days of answer (unless there is good cause)
    • Defendant within ninety days of plaintiff’s certification (unless there is good cause)
  2. If 1) is not met, they can’t testify (unless there is good cause).
  3. This section doesn’t apply to court appointed or rebuttal experts.

There are often challenges to these kind of statutes. Both sides have fairly strong arguments

  • Against – Equal protection (unconstitutional)
  • For – Necessary (insurance claims, still ways to get access to the courts, etc.)


The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.