Marge was suffering from pain in her lower right leg and went to see Dr. Xerxes for a consultation. Dr. Xerxes decided that a muscle biopsy was the appropriate diagnostic measure to take to determine the cause of the pain. Dr. Xerxes had Marge sign a consent form wherein she gave consent to the muscle biopsy. The consent form also had this clause in it:

"I consent to such further or alternate measures as may be found necessary during the course of the muscle biopsy."

During the muscle biopsy, Dr. Xerxes noticed an unusual bone growth in the same area where the biopsy was done. He performed an additional diagnostic procedure, namely a bone biopsy, as he was concerned that there might be a problem with the tibia bone. Following the surgery, Marge was discharged with a pair of crutches. She was not told about the bone biopsy, nor was she told not to put weight on her right leg. Several days later, while using her crutches, Marge put weight on her right leg and her tibia bone broke. It was determined that the bone broke at the exact location of the bone biopsy. Marge went to a lawyer, Lionel Klutz, and decided to sue Dr. Xerxes.

a) What arguments would Lionel Klutz make on behalf of Marge to establish the liability of Dr. Xerxes? In answering this question, be sure to state the applicable cause(s) of action and why it (they) applies (apply) to these facts.

b) What arguments would Dr. Xerxes's lawyer make to avoid liability?

c) What is the likely outcome of this case and why?

d) Would the result be different if it was established that Dr. Xerxes did not have professional liability insurance? Why or why not?