Med Mal Defenses

Question 1

Two Schools of Thought

Answer 1

ttacks P’s prima facie case. Occurs when there is a secondary school of thought when the method is:
(1) advocated by a considerable number of
(2) recognized and respected professionals in the given area of expertise. (Some states may require more).
There must be evidence that there are other acceptable methods of diagnosis or treatment for a particular medical condition to be able to present this defense to the jury.
Jury will decide both (1) and (2) D bears the burden of proving the existence of a secondary school of thought
Can also use Expert testimony
CA does not recognize this rule, uses a reasonable physician standard of care. Not necessary to ask about another school of thought if it still comes down to whether the physicians conduct was reasonable under the circumstances

Question 2

Contributory Negligence

Answer 2

If P’s acted negligent in any way and contributed to their harm, they were completely barred from recovery. If D could show this, then they could avoid liability. Too harsh. Old affirmative defense. Only a few states left that use this.

Question 3

Comparative Negligence

Answer 3

P’s recovery is reduced by the percentage of P’s negligence that occurred before or concurrently with D’s wrongdoing.
Pure Comparative Negligence: P always recovers, but total recovery is reduced by the P’s percentage of fault, as determined by the jury.
Modified Comparative Negligence: if P’s proportion of negligence is above a certain threshold, then P is barred from recovery.
If P is “not more than”: P recovers if P’s negligence is less than or equal to D’s negligence

Question 4

Avoidable Consequences/ Duty to Mitigate

Answer 4

P’s recovery is reduced by the percentage of P’s negligence that occurred after D’s wrongdoing. P cannot recover for any portion of the harm that by the exercise of ordinary care the P could have avoided. (Ostrowski).
Diminution/Mitigation of Damages Rule: P is not barred from recovery; total recovery is reduced
More applicable to med mal context vs. comparative negligence

Question 5

Eggshell Plaintiff/ Aggravation of Preexisting Condition

Answer 5

D’s must take P’s as they find them. When the actor’s tortious conduct causes harm to a person that, because of a preexisting condition or other characteristics of the person, is of a greater magnitude or different type that might be reasonably expected, the actor is nevertheless subject to liability for all such harm to that person.

D is only liable for what they caused, cant reduce liability because of preexisting conditions. Because the person was weakened, and had an underlying problem, the injurer is still liable for all the harms they caused. Doctors have to weigh the risks and benefits of doing the surgery since they might be liable. Experts can be relied on to determine.

In Med Mal: refers to patient’s pre-treatment lifestyle choices and existing medical conditions
Courts generally will not allow P’s recovery to be reduced based on P’s pre-op conduct

Question 6

Aggravation of a pre-existing condition:

Answer 6

R: A Defendant whose acts aggravate a P’s preexisting condition will only be liable for the amount of harm actually caused by D’s negligence. Physicians will not be liable for all medical conditions present before care began, including those that P caused.

Can be difficult to separate how much of P’s injury is due to a pre-existing condition vs. aggravation, so some courts do not require P’s to prove the amount of aggravation with “great exactitude”.

Question 7

Statutes of Limitations and Repose

Answer 7

Both SOL and Statutes of repose limit the time frame for filing a lawsuit . A claim may be dismissed if time has run.

SOL: can be tolled for any number of reasons

Repose: Generally impose an outer limit (not as flexible)
State statute examples in med mal context- variations in:
SOL time frame (within 1/2/3 year(s) from date of negligent act)
180 day extension by giving D written notice of claim (Ohio)

Discovery Rule:
Foreclosed from filing if SOL passed (AK)
Clock starts at time of discovery (RI)
Clock starts at time of discovery but still constrained by statute of repose outer limit (CA)
Clock starts at time of discovery of foreign object only (MO)
Clock starts at time of discovery and may exceed statute of repose of outer limit (OH)

Question 8

Waivers / Exculpatory Clauses

Answer 8

An exculpatory clause is enforceable if (1) the contract was validly formed (was there duress, fraud, or mistake??) (2) the waiver is clear and unambiguous (3) the waiver involves public interest.

Tunkl Factors:
1. It concerns a business of a type generally thought suitable for public regulation

2. The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some . .

(3) The party holds himself out as willing to perform this service for any member of the public who seeks it, or . . . for any member coming within certain established standards.

(4) As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services.

(5) In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation . . .

(6) [A]s a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agent

Question 9

Good Samaritan Laws

Answer 9

GSL immunizes physicians from med mal claims when those physicians provide treatment- outside their standard professional practices- to those who require such care.

Rationale: we do not want people to be deterred by the prospect of tort liability if there is a bad outcome

Key variations in: Who the statute applies to, varies by states.