Medical Law Flashcards
Doctor owes pt?
- Standard of care
- Non-abandonment
- Informed consent
- Confidentiality
* owed only if in a tx relationship (tx relationship is per episode of illness)
Cannot refuse a pt if:
- For an illegal reason (race, disability, gender, etc.)
2. If already agreed (types of prior agreement: MCO contract or On-Call)
Detrimental reliance
On the part of the pt, if they rely on you as their physician to provide care then that is sufficient to est tx relationship
Informal consult
No tx relationship formed w/ pt
- no see pt, no see record, no write in record, no see labs, no bill
Independent Medical Exam (IME)
E.g - for social security, life insurance, etc.
*not in tx relationship w/ examinee
Ways to terminate tx relationship
- Mutual consent
- Pt dismisses physician
- Medical services no longer needed
- Physician unilateral withdrawal
Unilateral physician withdrawal
Permitted w/ sufficient notice (an amt of time appropriate for the pt to find another provider)
Abandonment
Failure to provide sufficient notice effort terminating tx relationship w/ a pt
Informed Consent
Exercise reasonable judgment/skill
(i.e. be non-negligent, avoid malpractice
Standard of Care
Judgment and skill of reasonably prudent physician under the circumstances
*usually est by expert witness
Battery
- no consent at all
1. No consent to any procedure
2. Consent to a diff procedure
3. Same procedure, diff body part
4. Same procedure, same part, diff doctor
Informed Consent
- Duty - what to disclose
- Breach - did not disclose
- Injury - undisclosed risk happened
- Causation - w/ disclosure, would have avoided injury
2 main tests/measures of Duty
- Risks
- Alternatives
Ways to measure Duty
- Reasonable pt standard (“material risk” standard, measured by pt needs)
- Reasonable physician standard (“professional/malpractice standard”, measured by professional custom)
Exceptions to Duty
- Information already known (by particular pt or commonly known)
- Emergency
- Therapeutic privilege
- Waiver (pt doesn’t want to know)
- Public health (treat to protect the community)
- CBO clause (conscious based objection)
Breach if:
- Duty under applicable standard
- No exception applies
* if physician fails to conform to applicable SOC
Injury
plaintiff must actually be injured from the undisclosed risk (no dignitary tort)
* no injury = no informed consent claim
Causation
Connects breach to injury
- w/o defendant breach (lack of disclosure), plaintiff prob wouldn’t be injured
- injury direct result from breach
Sub-elements of causation
- Plaintiff would have chosen differently had disclosure been made (i.e. wouldn’t have consented)
- Reasonable pt would have chosen differently
- No procedure = no injury (risk must have been caused by the intervention) and
Reasonable Person/pt Standard
Duty to disclose new info IF reasonable pt would find it material in giving consent
Reasonable Physician Standard
Duty to disclose new info IF it is professional custom to disclose that
Punitive Damages
Awarded to the pt to punish the physician and set an example for the medical community
* rare and awarded only in cases of wanton carelessness or gross negligence
Capacity
Ability to understand the significant benefits, risks and alternatives to proposed health care AND ability to make and communicate a decision
- capacity is clinical decision w/ legal consequences
Decision-specific capacity
May have capacity to make some decisions about some things, but not others
Fluctuating capacity
May have more/less capacity @ diff times of day, etc.
Substitute Decision Maker (SDM)
1st - pt picks herself
2nd - if no agent, turn to default priority list (surrogate/proxy)
3rd - ask court to appoint SDM
Hierarchy of decision making by SDM
- Subjective (what pt wanted based on instructions given)
- Substituted judgment (what they would have wanted based on what you know about them)
- Best interest
Minors (<18yo)
Presumed incompetent, so parent is SDM and acts in Best Interest of the pt (can’t refuse life-saving tx unless harm outweighs benefits)
Exceptions to minor competence:
- Emancipation
- Un-emancipated can consent to some types of tx (STD, bc pill, etc)
- “Mature” minors can consent in some states
Never-competent Adults
SDM must act in pt’s Best Interest (like with minors)
Civil Commitment
Judges “commit” whereas doctors “detain” (done if individual is danger to self or others)
*up to 48 hrs pending court hearing
Reasons for Civil Commitment
- Mental health (SI/HI)
- Infectious dz (Ebola)
* still retain all rights except right to leave
Iatrogenic Injury
Injuries induced by physician, medical tx, or diagnostic procedures
Goal of Med Mal Litigation
Deter unsafe practices, and compensate the injured
Standard of Care (SOC)
Defined by expert witness as what a reasonable physician would have done in the same circumstances
- SOC varies
Strict Locality SOC
Used to be the rule everywhere, now only still the rule in Idaho
- very few ppl know the SOC in rural Idaho, etc.
Statewide SOC
Compare to the reasonable MD in the state where the defendant practices
Same or Similar SOC
Duty to act as reasonable physician in their same community or in one similar to it
Nationwide SOC
Physician expected to possess medical knowledge and to exercise medical judgment as posed by reasonable doctors anywhere in the country
Theories of Negligence
- Decision to operate
- Surgery itself
- Post-op care
- Sponge left
Economic SOC variation
This variation is ONLY when using the national standard
School of Thought (SOT)
More than one SOC can exist, as long as physician can prove their conduct complies with either one then that is sufficient
*must be established by physician the same way the pt establishes SOC (e.g. - geographical)
Clinical Practice Guidelines (CPG)
Based on systematic review of clinical evidence
- legislature comply w/ CPG = safe harbor
Causation
Physician breached the applicable SOC and the injury is a result of the malpractice
Types of Causation
- “But for” (without)
2. Lost chance
“But for” Causation
Without the physicians negligence the pt would not be injured, not enough that the negligence increased the risk of harm but must be the MOST LIKELY cause
> 50% chance the injury was caused by negligence then 100% of damages owed
Lost Chance Causation
If the negligence makes an already probable injury more probable
Economic Damages
Main type, measurable and quantifiable
Non-economic Damages
Pain and suffering, loss of enjoyment
Nominal Damages
Pt not injured but violated; very rare
Good Samaritan Defense
Immunity from civil damages for personal injuries that result from ordinary negligence
*outside medical setting, no duty, no expectation, pt doesn’t object
Statute of Limitations (SOL)
Date injury was discovered by pt
Statute of Repose (SOR)
Date malpractice was committed
SOL and SOR
- Lawsuit barred as soon as either runs out first
1. Date (of malpractice in SOR) or (discovery in SOL)
2. Length of SOR and SOL
3. Date lawsuit filed
Assumption of Risk
Pt understood and voluntarily agree to the procedure aware of the risks (subjective standard)
Waivers
Partial waivers are allowed but complete waivers are prohibited
Comparative Negligence
Partial defense to reduce damages, if the pt does not do what a reasonable person would do (objective standard)
Arbitration
Tribunal from a gov court to private dispute resolution
Res ipsa loquitor
Thing speaks for itself, jury can infer that there was med mal
Breach of Contract
Need a specific guarantee, usually in writing
Pain control
SOC in most jurisdictions is to adequately treat pain, seen as “elder abuse” if inadequate pain management of elder pt’s
Intentional Infliction of Emotional Distress (IIED)
.
Negligent Infliction of Emotional Distress (NIED)
.
Vicarious Liability
Employers responsible for torts of their employees
Falsification
Billing for services NEVER performed
Overutilization
Procedures were provided and billed, but NOT medically necessary
HIPPAA Exceptions
Treatment, Payment, Operations (TPO)
Provider Order Life Sustaining Treatment (POLST)
Supplements an Advanced Directive; bright color, 1 page, easy to follow, immediately actionable
