Medical Malpractice Flashcards
Tort Law
- wrongdoing
- wrongs recognized by laws as grounds for a lawsuit
- include intentional harms, negligent car wreck, product related harm, defamation, environemnental pollution and medical malpractive
- all torts involve conduct that fall below some legal standard
- in almost all cases, the defendant is in some sense at fault, either because he intends harm or becasue he takes unreasonable risk of harm
- remedy is usually damages (money)
NEgligence
involves conduct that creates an unreasonable risk of harm for another.
Medical malpractice is another way to say professional negligence by a health professional
When does medical malpractive occur?
when a health care professional or provider neglects to provide appropriate treatment, omits to tale an appropriate action, or gives substandard treatment that cause harm, injury, or death to the patient
Expert Testimony needed
- expert medical testimony is requird to establish the medical standard of are unless it is obvious
- medical standard of care often reflects reasonable car
- expert medical testimony typically needed on for all elements of a medical malpractice claim
The elements of negligence
There are five elements of negligence
Duty
Breach of Duty
Cause in fact
Proximate Cause and Damages
Injury and compensation
Duty
In the usual negligence action, a legal duty requires the tortfeasor (defendant) to conform to a certain standard of conduct in order to protect others from unreasonable risk of harm.
- posses the requisite degree of skill, care, and learning ordinarily possessed and used by members of that professional’s line of practice
- Exercise ordinary and reasonabl care in the application of such knowledge and skill
- use best judgement in such application
- refer patients to someone more qualifies when proper treatment is beyond the ehalth care provider ability
A professional is required to have the skill and learning commonly possed by members in good standing within that profession
Articulating the customary practice or standard of care
Geographic limitations of Duty
Locality rule
Same or similar locale
National standard
When does the duty end?
Patient consents to termination
patient dismisses the ehalth care provider
patient does not require any further care
health care provider discontinues care after providing sufficient notice to the patient
Breach of duty
Once the court determines that the defendent owerd the plaintiff a duty - usually the duty of reasonable care - the question is whether the defendant breached that duty by failing to exercise the care required
Negligence is conduct that imposes unreasonable risk of harm. The tisk of harm is unreasonable when a reasonable and prudent person would forsee that harm migh result and qould avoid conduct that creates a risk.
affirmatively creating an unreasonable risk of harm or failing to act (an omission) if action is required
- incorrect diagnosis (affirmative conduct)
- failure to treat, diagnose, attend or refer (omission)
Med Mal or Professional negligence: Breach
Failure to have the skills and learning commonly possessed by member in good standing in the profession
Failure to use good judgement in choosing course of action, to the extent it constituites a deviation from the standard of care
Failure to make referrals when appropriate
Failure to follow up on the client’s progress, condition
Failure to provide informed consent
Other types of error and malpractice
Misdiagnosis or failure to diagnose
Unecessary or incorrect surgery
Premature discharge
Not following up
Leaving things inside the patient’s body after surgery
Prescribing the wrong dosage or the wrong medication
Operating on the wrong part of the body
Potentially fatal infections acquired in the hospital
Failure to follow-up on ordered tests (ecspecially if those test come after the patient is discharged)
Failure to review prior medical history
Failure to transfer to another facility when condition requires specialized expertise and/or equitment
Failure to adequately maintain medical record
Causation: Accountability
Cause in fact: proof that the defendant;s actions were the direct, factual cause of the plantiff’s injuries (cause and fact)
Proximate cause: the defendant’s conduct was so closely connected to the plantiff’s injuries that the defendant should be heald liable
Causation - proximate cause
- Foreseability is an essential element of proximate cause
- Foreseeability is proven by expert testimony
- Case law in DC has held that when an expert’s testimony is necessary to tpove an element of causation in a negligence suit, the expert must be able to state an opnion, based on a reasonable degree of medical certainty, that the defendant’s negligence is more likely than anything else to be the cause (or a cause) of plaintiff’s injury
Compensatory Damages
compensate the victim for her losses and restore her to the position she was in before she sustained her injuries
Punitive damages
punish the defendant
Compensatory Damages
Bodily injury
medical expenses
mental anguis and suffering (non-economic loss)
disfigurement/deformity
loss of earnings and earning capacity
loss of consrtium (non-economic loss) - not the patient but the spouse makes this claim
Affirmative legal defenses
Affirmative defense in the lawsuit
The good Samaritan Laws
intended to encourage aid (protect physicians and others in emergency situations) without fear of liability
Gross negligence or wanton conduct usually excluded
ALl 50 states and DC
Contributory Fault (5 jurisdictions)
Conduct on the part of the plantiff which falls below the standard to which he should conform for his own protection, and which is a legally contributing cause co-operating with the negligence of the defendant in bringing about the plaintiff;s harm
This is a bar or a complete defense to the plaintiff;s lawsuit
Comparative Fault
Most jurisdictions use some for of comparative fault to determine the relative responsibility of the plantiff and the defendant(s) for plaintiff’s injury
There are different types of comparative fault, comparative negligence or comparative responsibility but all are based on relative fault of the parties
Statue of limitations
The bar “Stale” claims
To permit both personal/business planning and to avoid economic burdern that would be involved if the defendant and their insurance companies had to carry indefinitely a reserve for liability that might never be imposed
accural v. discovery rules
DC statue of limitations - with 3-5 years of the date that an event occured
Pre-notice requirement - 90 days
Informed consent
A good example of how the law interacts with our values
The principle of autonomy underlies the doctorine of informed consent
It is is prerogative of the patient, not the physician, to determine
Doctorine of Informed Consent
Physicians must disclose a “material risk”
Professional community Standard: The physician or heath care provider must provide the amount of information that would be expected from other reasonable practioners within the community in similar situations
Physicians are not under a duty to disclose every small or remote risk to which a procedure may subject a patient
Reasonable patient standard: The physician must disclose the amount and kind of information needed . . . that a hypothetical reasonable person would need in order to understand the nature of the condition and the various options
A treating practioner’s duty of care includes duty to give the patient enough information in non-technical language to allow the patient to understand and to make a meaningful choice among the available treatment options (duty to warn of any material risk, complications, or side effects which may be inherent in the proposed treatment/Telling patient of alternative treatments and the material risk of each)
Therapeutic privelage
Esceptions to the informed consent rule
The caregiver may proceed with care without consent in cases of emergency; incompetence, and due to depression or instability, the patient could be harmed by the information
Statutory Response to the Medical Malpractice “Crisis” or Tort reform
- Perception that increases in medical cost related to medical malpractice litigation
- emperical studies conducted during this time showed that cost of paid and settled malpractice claims remained largely stable although premium cost increase
- Cost of insurance to doctors related to medical malpractive litigation
- Insurance policy limits act as an effective cap
- incrase in insurance cost relate more to investment cycle
- Difficulty of doctors in certain specialties and in certain geographic areas to procure or obtain insurance related to medical malpractice lititgation
- Large number of medical malpractive cases being filed by greedy lawyers
Cos of medical treatment has fone up for many reasons not associated with lawsuits such as
cost of new equitments, building, technology and pool of elderly
Substantive Changes to the law
Standard of care must be local or statewide, not national
Statues of limitations have an absolute outside limit even when the patient cannot discover the negligence for many years
No malpractive clain can be based on a contract unless the contract is in writing
informed consent are limited or discouraged
Remidial Changes to the Tort Reform
State statues limit damages and may include absolute caps of noneconomic damages or the total recovery
AMaounts recieved from other collateral sources such as health and disability insurance may be deducted from the defendant’s awards
Limits on the attorney’s fees that cna be collected in a successfule suot
Procedural Changes to Tort Reform
- Statues strictly limit experts who can testify
- Plantiff is required to get a certificate of merit - an affidavit at the beginning of the suit certifying that a qualified medical expert believes there are reasonable grounds for the suit
- Plantiff is required to submit her claims to pretrial arbitration or screen panels before suin
- Contracts between patient and medical providers may be permited to require arbitration in lieu of tort claims
- Plantiff must give notice of intent to sur and then cannot bring suit for a waiting period after that, with complex effects on the statute of limitations
Ways to avoid malpractice exposure
Maintain a reasonable workload
Calendar deadlines; maintain a backup calendar
Maintain patient confidences
Be alert to patient dissatisfaction
keep patient well informed
return patient phone call and respind to patient correspondence in a timely fashion
Keep patient file well organized
Allocate the time necessary to complete task completely
bill periodically and in detail; monitor accounts recievable on a regular basis
learn how to manage your buisness
Medical records
extremely important to the defense of a medical malpractice claim
- do not alter records - inserting notes, amendments, even made with the best intention, can look like a cover up
- Use careful charting documentation-it is impotant for records to be a clean and complete
- incomplete records hurt. Experts rely on medical records with the benefit of hindsight. If the record is inadequate, the expert doesnt knowt is done
