Comments on: MBE Question of the Day #11 http://barexambrief.com/2010/01/09/mbe-question-of-the-day-11/ All things related to studying for and passing the bar exam, brought to you by the staff of MicroMash Bar Review Sat, 07 Apr 2012 13:23:54 +0000 hourly 1 http://wordpress.org/?v=3.2 By: AB http://barexambrief.com/2010/01/09/mbe-question-of-the-day-11/comment-page-1/#comment-10653 AB Sat, 29 Jan 2011 00:48:20 +0000 http://barexambrief.com/?p=722#comment-10653 D D

]]> By: Maryann Herman http://barexambrief.com/2010/01/09/mbe-question-of-the-day-11/comment-page-1/#comment-299 Maryann Herman Sun, 10 Jan 2010 16:07:55 +0000 http://barexambrief.com/?p=722#comment-299 Answer D is correct. The patient will recover at least nominal damages. The patient here need only show that the extension of the operation was an intentional, unpermitted, offensive contact in order to recover at least nominal damages in battery. The patient may recover in battery regardless of whether he was harmed. Battery is a tort where no physical harm need be shown, and no actual damage need be proven. Answer A is incorrect. The patient here can show that the extension of the operation was an intentional, unpermitted, offensive contact. Therefore, the patient may recover in battery regardless of whether or not he was harmed. Battery is a tort where no physical harm need be shown, and no actual damage need be proven. Actual harm is an element of the prima facie case of negligence, but is not required for most intentional torts. Answer B is incorrect. The patient may recover in battery regardless of whether he was harmed and whether or not the physician's conduct was incompetent (i.e., negligent). Battery is a tort where no physical harm need be shown, and no actual damage need be proven. Also, no negligence or incompetence need be shown in battery. The patient here need only show that the extension of the operation was an intentional, unpermitted, offensive contact. Answer C is incorrect. In a negligence action, actual harm must be shown. The plaintiff must establish that he suffered damage as a result of the defendant's conduct. Damages will not be presumed and nominal damages cannot be awarded in a negligence action. Nominal damages are only appropriate in a suit based on an intentional tort where no actual harm can be shown. Answer D is correct. The patient will recover at least nominal damages. The patient here need only show that the extension of the operation was an intentional, unpermitted, offensive contact in order to recover at least nominal damages in battery. The patient may recover in battery regardless of whether he was harmed. Battery is a tort where no physical harm need be shown, and no actual damage need be proven.

Answer A is incorrect. The patient here can show that the extension of the operation was an intentional, unpermitted, offensive contact. Therefore, the patient may recover in battery regardless of whether or not he was harmed. Battery is a tort where no physical harm need be shown, and no actual damage need be proven. Actual harm is an element of the prima facie case of negligence, but is not required for most intentional torts.

Answer B is incorrect. The patient may recover in battery regardless of whether he was harmed and whether or not the physician’s conduct was incompetent (i.e., negligent). Battery is a tort where no physical harm need be shown, and no actual damage need be proven. Also, no negligence or incompetence need be shown in battery. The patient here need only show that the extension of the operation was an intentional, unpermitted, offensive contact.

Answer C is incorrect. In a negligence action, actual harm must be shown. The plaintiff must establish that he suffered damage as a result of the defendant’s conduct. Damages will not be presumed and nominal damages cannot be awarded in a negligence action. Nominal damages are only appropriate in a suit based on an intentional tort where no actual harm can be shown.

]]> By: Sally http://barexambrief.com/2010/01/09/mbe-question-of-the-day-11/comment-page-1/#comment-298 Sally Sun, 10 Jan 2010 04:10:30 +0000 http://barexambrief.com/?p=722#comment-298 D is correct - Nominal damages under battery. Battery is harmful and offensive touching. There was no implied consent for doctor to work on Patients left ear. Thus it offensive touching for a reasonable person under the circumstances. C - no recovery under negligence because no damage A and B - wrong because Patient will recover D is correct – Nominal damages under battery. Battery is harmful and offensive touching. There was no implied consent for doctor to work on Patients left ear. Thus it offensive touching for a reasonable person under the circumstances.

C – no recovery under negligence because no damage

A and B – wrong because Patient will recover

]]> By: Ken http://barexambrief.com/2010/01/09/mbe-question-of-the-day-11/comment-page-1/#comment-296 Ken Sun, 10 Jan 2010 01:10:09 +0000 http://barexambrief.com/?p=722#comment-296 The answer is D - Battery is the intentional tort of un-consented and intended physical harm on another. Here, the patent did not consent to surgery on the right ear, the doctor did intend physical touching on the right ear and per4formed surgery on the right ear without consent. All elements are satisfied for a claim by the patient for a battery action against the doctor. The answer is D -

Battery is the intentional tort of un-consented and intended physical harm on another. Here, the patent did not consent to surgery on the right ear, the doctor did intend physical touching on the right ear and per4formed surgery on the right ear without consent. All elements are satisfied for a claim by the patient for a battery action against the doctor.

]]> By: RK http://barexambrief.com/2010/01/09/mbe-question-of-the-day-11/comment-page-1/#comment-295 RK Sun, 10 Jan 2010 00:40:58 +0000 http://barexambrief.com/?p=722#comment-295 The best answer is D. The statute in the jurisdiction only covers emergency situations, and in the fact pattern, this was not an emergency situation. Thus A and B are eliminated. Choice C is incorrect because there is no basis for negligence because the physician operated with due care and the operation was a success. Despite this, the patient did not consent to an operation on the left ear. The best answer is D. The statute in the jurisdiction only covers emergency situations, and in the fact pattern, this was not an emergency situation. Thus A and B are eliminated. Choice C is incorrect because there is no basis for negligence because the physician operated with due care and the operation was a success. Despite this, the patient did not consent to an operation on the left ear.

]]> By: mimi http://barexambrief.com/2010/01/09/mbe-question-of-the-day-11/comment-page-1/#comment-294 mimi Sat, 09 Jan 2010 23:26:56 +0000 http://barexambrief.com/?p=722#comment-294 Answer D Answer D

]]> By: mimi http://barexambrief.com/2010/01/09/mbe-question-of-the-day-11/comment-page-1/#comment-293 mimi Sat, 09 Jan 2010 23:26:14 +0000 http://barexambrief.com/?p=722#comment-293 Answer (D) Answer (D)

]]> By: ANY http://barexambrief.com/2010/01/09/mbe-question-of-the-day-11/comment-page-1/#comment-292 ANY Sat, 09 Jan 2010 21:35:53 +0000 http://barexambrief.com/?p=722#comment-292 The answer is D. A battery is committed where one commits harmuful or offensive contact with the person of another or an object closely connected to the person of another. One may consent to such contact. Where one consents to a certain degree of contact, any contact that exceeds consent is sufficient for an action in battery. Here, the patient consented to the operation on her right ear. However, when Dr. operated on Patient's left ear, Dr, exceeded the degree of contact to which patient consented. Therefore, Dr is liable to Patient for the tort of battery and Patient may at least recover nominal damages as a result. A is wrong because the fact that the operation was successful is irrelevant because Dr exceeded Patient's consent to contact. B is wrong because thie is not a case where Dr breached his duty to adhere to the standard of care. C is wrong because a claim of battery provides a stronger ground for success by Patient. The answer is D. A battery is committed where one commits harmuful or offensive contact with the person of another or an object closely connected to the person of another. One may consent to such contact. Where one consents to a certain degree of contact, any contact that exceeds consent is sufficient for an action in battery. Here, the patient consented to the operation on her right ear. However, when Dr. operated on Patient’s left ear, Dr, exceeded the degree of contact to which patient consented. Therefore, Dr is liable to Patient for the tort of battery and Patient may at least recover nominal damages as a result.

A is wrong because the fact that the operation was successful is irrelevant because Dr exceeded Patient’s consent to contact.

B is wrong because thie is not a case where Dr breached his duty to adhere to the standard of care.

C is wrong because a claim of battery provides a stronger ground for success by Patient.

]]> By: Lisa http://barexambrief.com/2010/01/09/mbe-question-of-the-day-11/comment-page-1/#comment-291 Lisa Sat, 09 Jan 2010 19:48:48 +0000 http://barexambrief.com/?p=722#comment-291 (D) (D)

]]> By: BV http://barexambrief.com/2010/01/09/mbe-question-of-the-day-11/comment-page-1/#comment-290 BV Sat, 09 Jan 2010 19:05:22 +0000 http://barexambrief.com/?p=722#comment-290 D is the correct answer. D is the correct answer.

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