 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
McKenzie v. Hawaii Permanente Medical Group6/10/2002
"misfeasance" that is not analogous to the "nonfeasance" in failing to act as a "Good Samaritan" or failing to take affirmative "action" as the term is used by Restatement (Second) § 314.
2. Applicability of Restatement § 302
Relying upon Touchette and Restatement (Second) § 302, the McKenzies contend that the proper framework for analyzing this case is whether Dr. Washecka's action in negligently prescribing prazosin created a risk of harm to them through the action of a third party -- his patient Wilson. The McKenzies are correct, although Touchette and the language of Restatement (Second) § 302 do not necessarily mandate that Dr. Washecka owes a duty to them.
Restatement (Second) § 302 states:
A negligent act or omission may be one which involves an unreasonable risk of harm to another through either
(a) the continuous operation of a force started or continued by the act or omission, or
(b) the foreseeable action of the other, a third person, an animal, or a force of nature.
Ostensibly, Kaiser could be liable to the McKenzies pursuant to subsection (b) because it is foreseeable that Wilson would drive after ingesting a negligently prescribed medication and therefore subject them to harm. When the tortfeasor instigates the act causing harm -- such as by prescribing medication -- Restatement (Second) § 302 generally applies. See Restatement (Second) § 314 comment d. Consistent with this view, we held in Touchette that, under Restatement (Second) § 302, the defendant might owe a duty to the plaintiffs, family members of her extramarital lover who were harmed by the assaultive behavior of the defendant's husband (the third party), where the husband's behavior was ostensibly caused by the defendant's affirmative "misfeasance" of taunting her husband and causing him to suffer extreme emotional distress leading to the assaults. Touchette, 82 Hawaii at 304, 922 P.2d at 358; cf. Lee, 83 Hawaii at 156-58, 162, 925 P.2d at 326-28, 332 (veterans counselor who did not provide psychiatric or psychological counseling services did not owe a duty, pursuant to Restatement (Second) § 302, for alleged "nonfeasance" in failing to warn a veteran's father of the veteran's threat to commit suicide).
However, Restatement (Second) § 302 by itself does not create or establish a legal duty; it merely describes a type of negligent act. Comment a to this section states in relevant part that:
[Section 302] is concerned only with the negligent character of the actor's conduct, and not with [the actor's] duty to avoid the unreasonable risk. In general, anyone who does an affirmative act is under a duty to others to exercise the care of a reasonable [person] to protect them against an unreasonable risk of harm to them arising out of the act. . . . If the actor is under no duty to the other to act, his failure to do so may be negligent conduct within the rule stated in this Section, but it does not subject him to liability, because of the absence of duty. (Emphases added). See also Restatement (Second) (1965) table of contents (the structure of which indicates that the conduct described in § 302 is one of several "types of negligent acts").
Accordingly, the fact that Dr. Washecka's negligent conduct falls under the rubric of Restatement § 302 does not establish per se that he owes a duty to the McKenzies; it only describes the manner in which he may be negligent if he owed a duty to the McKenzies. To determine whether the negligent prescription of prazosin created an "unreasonable risk of harm" to the McKenzies -- and thus whether Dr. Washecka owed a duty to them -- we turn to the usual considerations that constit
Page 1 2 3 4 5 6 7 8 9 10 11 12 Hawaii Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|