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Behavioral > Medical Law > Flashcards

Medical Law Flashcards

1
Q

Doctor owes pt?

A
  1. Standard of care
  2. Non-abandonment
  3. Informed consent
  4. Confidentiality
    * owed only if in a tx relationship (tx relationship is per episode of illness)
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2
Q

Cannot refuse a pt if:

A
  1. For an illegal reason (race, disability, gender, etc.)

2. If already agreed (types of prior agreement: MCO contract or On-Call)

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3
Q

Detrimental reliance

A

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

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4
Q

Informal consult

A

No tx relationship formed w/ pt

- no see pt, no see record, no write in record, no see labs, no bill

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5
Q

Independent Medical Exam (IME)

A

E.g - for social security, life insurance, etc.

*not in tx relationship w/ examinee

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6
Q

Ways to terminate tx relationship

A
  1. Mutual consent
  2. Pt dismisses physician
  3. Medical services no longer needed
  4. Physician unilateral withdrawal
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7
Q

Unilateral physician withdrawal

A

Permitted w/ sufficient notice (an amt of time appropriate for the pt to find another provider)

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8
Q

Abandonment

A

Failure to provide sufficient notice effort terminating tx relationship w/ a pt

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9
Q

Informed Consent

A

Exercise reasonable judgment/skill

(i.e. be non-negligent, avoid malpractice

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10
Q

Standard of Care

A

Judgment and skill of reasonably prudent physician under the circumstances
*usually est by expert witness

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11
Q

Battery

A
  • 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
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12
Q

Informed Consent

A
  1. Duty - what to disclose
  2. Breach - did not disclose
  3. Injury - undisclosed risk happened
  4. Causation - w/ disclosure, would have avoided injury
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13
Q

2 main tests/measures of Duty

A
  • Risks

- Alternatives

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14
Q

Ways to measure Duty

A
  1. Reasonable pt standard (“material risk” standard, measured by pt needs)
  2. Reasonable physician standard (“professional/malpractice standard”, measured by professional custom)
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15
Q

Exceptions to Duty

A
  1. Information already known (by particular pt or commonly known)
  2. Emergency
  3. Therapeutic privilege
  4. Waiver (pt doesn’t want to know)
  5. Public health (treat to protect the community)
  6. CBO clause (conscious based objection)
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16
Q

Breach if:

A
  1. Duty under applicable standard
  2. No exception applies
    * if physician fails to conform to applicable SOC
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17
Q

Injury

A

plaintiff must actually be injured from the undisclosed risk (no dignitary tort)
* no injury = no informed consent claim

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18
Q

Causation

A

Connects breach to injury

  • w/o defendant breach (lack of disclosure), plaintiff prob wouldn’t be injured
  • injury direct result from breach
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19
Q

Sub-elements of causation

A
  1. Plaintiff would have chosen differently had disclosure been made (i.e. wouldn’t have consented)
  2. Reasonable pt would have chosen differently
  3. No procedure = no injury (risk must have been caused by the intervention) and
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20
Q

Reasonable Person/pt Standard

A

Duty to disclose new info IF reasonable pt would find it material in giving consent

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21
Q

Reasonable Physician Standard

A

Duty to disclose new info IF it is professional custom to disclose that

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22
Q

Punitive Damages

A

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

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23
Q

Capacity

A

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

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24
Q

Decision-specific capacity

A

May have capacity to make some decisions about some things, but not others

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25
Q

Fluctuating capacity

A

May have more/less capacity @ diff times of day, etc.

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26
Q

Substitute Decision Maker (SDM)

A

1st - pt picks herself
2nd - if no agent, turn to default priority list (surrogate/proxy)
3rd - ask court to appoint SDM

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27
Q

Hierarchy of decision making by SDM

A
  1. Subjective (what pt wanted based on instructions given)
  2. Substituted judgment (what they would have wanted based on what you know about them)
  3. Best interest
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28
Q

Minors (<18yo)

A

Presumed incompetent, so parent is SDM and acts in Best Interest of the pt (can’t refuse life-saving tx unless harm outweighs benefits)

29
Q

Exceptions to minor competence:

A
  1. Emancipation
  2. Un-emancipated can consent to some types of tx (STD, bc pill, etc)
  3. “Mature” minors can consent in some states
30
Q

Never-competent Adults

A

SDM must act in pt’s Best Interest (like with minors)

31
Q

Civil Commitment

A

Judges “commit” whereas doctors “detain” (done if individual is danger to self or others)
*up to 48 hrs pending court hearing

32
Q

Reasons for Civil Commitment

A
  1. Mental health (SI/HI)
  2. Infectious dz (Ebola)
    * still retain all rights except right to leave
33
Q

Iatrogenic Injury

A

Injuries induced by physician, medical tx, or diagnostic procedures

34
Q

Goal of Med Mal Litigation

A

Deter unsafe practices, and compensate the injured

35
Q

Standard of Care (SOC)

A

Defined by expert witness as what a reasonable physician would have done in the same circumstances
- SOC varies

36
Q

Strict Locality SOC

A

Used to be the rule everywhere, now only still the rule in Idaho
- very few ppl know the SOC in rural Idaho, etc.

37
Q

Statewide SOC

A

Compare to the reasonable MD in the state where the defendant practices

38
Q

Same or Similar SOC

A

Duty to act as reasonable physician in their same community or in one similar to it

39
Q

Nationwide SOC

A

Physician expected to possess medical knowledge and to exercise medical judgment as posed by reasonable doctors anywhere in the country

40
Q

Theories of Negligence

A
  1. Decision to operate
  2. Surgery itself
  3. Post-op care
  4. Sponge left
41
Q

Economic SOC variation

A

This variation is ONLY when using the national standard

42
Q

School of Thought (SOT)

A

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)

43
Q

Clinical Practice Guidelines (CPG)

A

Based on systematic review of clinical evidence

- legislature comply w/ CPG = safe harbor

44
Q

Causation

A

Physician breached the applicable SOC and the injury is a result of the malpractice

45
Q

Types of Causation

A
  1. “But for” (without)

2. Lost chance

46
Q

“But for” Causation

A

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

47
Q

Lost Chance Causation

A

If the negligence makes an already probable injury more probable

48
Q

Economic Damages

A

Main type, measurable and quantifiable

49
Q

Non-economic Damages

A

Pain and suffering, loss of enjoyment

50
Q

Nominal Damages

A

Pt not injured but violated; very rare

51
Q

Good Samaritan Defense

A

Immunity from civil damages for personal injuries that result from ordinary negligence
*outside medical setting, no duty, no expectation, pt doesn’t object

52
Q

Statute of Limitations (SOL)

A

Date injury was discovered by pt

53
Q

Statute of Repose (SOR)

A

Date malpractice was committed

54
Q

SOL and SOR

A
  • 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
55
Q

Assumption of Risk

A

Pt understood and voluntarily agree to the procedure aware of the risks (subjective standard)

56
Q

Waivers

A

Partial waivers are allowed but complete waivers are prohibited

57
Q

Comparative Negligence

A

Partial defense to reduce damages, if the pt does not do what a reasonable person would do (objective standard)

58
Q

Arbitration

A

Tribunal from a gov court to private dispute resolution

59
Q

Res ipsa loquitor

A

Thing speaks for itself, jury can infer that there was med mal

60
Q

Breach of Contract

A

Need a specific guarantee, usually in writing

61
Q

Pain control

A

SOC in most jurisdictions is to adequately treat pain, seen as “elder abuse” if inadequate pain management of elder pt’s

62
Q

Intentional Infliction of Emotional Distress (IIED)

A

.

63
Q

Negligent Infliction of Emotional Distress (NIED)

A

.

64
Q

Vicarious Liability

A

Employers responsible for torts of their employees

65
Q

Falsification

A

Billing for services NEVER performed

66
Q

Overutilization

A

Procedures were provided and billed, but NOT medically necessary

67
Q

HIPPAA Exceptions

A

Treatment, Payment, Operations (TPO)

68
Q

Provider Order Life Sustaining Treatment (POLST)

A

Supplements an Advanced Directive; bright color, 1 page, easy to follow, immediately actionable

Behavioral (11 decks)

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