Expert answer:Legal Duty Owed and a Breach of Duty

Solved by verified expert:Review the fact pattern belowPrepare a memorandum of not less than three, and not more than five, pages to your supervising attorney:Identifying and analyzing each breach of dutyIdentifying and applying the relevant standard of care applicable for each breachIdentifying the relevancy of any special rule or doctrine discussed in Chapters 4 & 5 that applies to each act that may constitute a breach of duty
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Dangerous Dining
Your supervising attorney hands you a file and tells you to review the attorney’s notes of
the client interview as well as the medical records and prepare a memo outlining all acts
that you believe constitute negligence. Use negligence as the relevant standard that applies
and any other torts you think are applicable to the facts.
The client’s name is Linda. Linda is a foodie that blogs about the fine dining establishments
in town. She and her husband decided to try out a new Italian restaurant. She orders
chicken Marsala, a Caesar salad and a bottle of the house chianti. Halfway through her
meal she started to chock on a small chicken bone that became lodged in her throat. The
chicken was supposed to be boneless but one of the new sous chefs made an error in
deboning the chicken and left a small bone fragment in the flesh.
Luckily for Linda her server, Anne, a sixteen-year-old high school student, spent her
summers as a lifeguard where she was trained in CPR and other lifesaving techniques. While
she’s not required to help, she decides to try the Heimlich maneuver to dislodge the bone.
Anne was successful. Linda thanks Anne and leaves a very generous tip.
A couple hours later, Linda started to feel light headed. She decided to get dressed for bed
and end the night early. While undressing, she noticed very deep and severe bruising
around her upper abdominal area. She goes to tell her husband to show him but passes out
before she can say anything. Her husband immediately calls 911 and an ambulance soon
arrives on the scene. She is immediately brought to the ER where it’s determined that
Anne’s Heimlich maneuver had caused the laceration of Linda’s liver.
Linda is immediately prepped for surgery. During the surgery to stop the bleeding, the
surgeon nicks an artery, which is a known risk. The surgeon cauterizes the artery after
some effort and proceeds with the operation without further incident.
After spending a few days recovering at the hospital, Linda returns home. She feels some
minor irritation around the incision site but just dutifully takes her pain meds and cleans the
incision site as per her physician’s instructions. A couple days later, the minor irritation
becomes painful and the surgical area swollen. She heads back to the ER. It is eventually
discovered that the surgeon had forgotten to take a piece of surgical gauze out of the
surgical site before closing. Linda had to undergo another surgery to remove the gauze.
…
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