The Element of Alternative Liability

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Strayer University
Legal 300, Tort Law
Professor Lindsey Appiah
By: Trenise S. Palmer

The alternative liability theory is most often used when two or more tortfeasors simultaneously commit independent acts of negligence, but only one act causes the injury, the plaintiff is then relieved from the burden of proof with respect to causation, and may sue both tortfeasors without direct proof of causation. However, the burden thus shifts to the defendant to exculpate them. Otherwise, defendants will be held joint and severally liable. In addition, the alternative liability theory has a very limited application, and is only used if all possible wrongdoers have been brought before the court. If I understand this theory correctly I believe that the courts should grant the plaintiff parents their motion to shift the burden of proof with response to causation to Dr. Brady based on this theory. The reason I say this is because Dr. Brady was called in and did not ascertain any information on the baby’s position before the use of forceps to deliver the baby. Dr. Cohn made the first diagnosis, however we don’t know if the injuries were caused before the child was delivered with the forceps, or during the delivery when Dr. Brady stepped in. Therefore, I would have to assume that the injuries were caused by Dr. Brady and Dr. Brady should be held liable. Dr. Brady decided to make the delivery without any knowledge of the problems during delivery and even try to diagnosis himself what position the baby was in before he made the delivery. How can any decisions be made that Dr. Brady did not cause those injuries while delivering that baby? How can another Dr. just treat a patient without knowledge of what is going on? If there is no knowledge how can he make a clear and concise diagnosis? In my opinion I believe that both of the doctor’s should be held liable due to the fact that Dr. Cohn gave a...
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