Medical Malpractice

Question 1

Tort Law

Answer 1

• 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)

Question 2

NEgligence

Answer 2

involves conduct that creates an unreasonable risk of harm for another.

Medical malpractice is another way to say professional negligence by a health professional

Question 3

When does medical malpractive occur?

Answer 3

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

Question 4

Expert Testimony needed

Answer 4

1. expert medical testimony is requird to establish the medical standard of are unless it is obvious
2. medical standard of care often reflects reasonable car
3. expert medical testimony typically needed on for all elements of a medical malpractice claim

Question 5

The elements of negligence

Answer 5

There are five elements of negligence

Duty

Breach of Duty

Cause in fact

Proximate Cause and Damages

Injury and compensation

Question 6

Duty

Answer 6

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

Question 7

Geographic limitations of Duty

Answer 7

Locality rule

Same or similar locale

National standard

Question 8

When does the duty end?

Answer 8

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

Question 9

Breach of duty

Answer 9

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)

Question 10

Med Mal or Professional negligence: Breach

Answer 10

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

Question 11

Other types of error and malpractice

Answer 11

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

Question 12

Causation: Accountability

Answer 12

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

Question 13

Causation - proximate cause

Answer 13

• 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

Question 14

Compensatory Damages

Answer 14

compensate the victim for her losses and restore her to the position she was in before she sustained her injuries

Question 15

Punitive damages

Answer 15

punish the defendant

Question 16

Compensatory Damages

Answer 16

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

Question 17

Affirmative legal defenses

Answer 17

Affirmative defense in the lawsuit

Question 18

The good Samaritan Laws

Answer 18

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

Question 19

Contributory Fault (5 jurisdictions)

Answer 19

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

Question 20

Comparative Fault

Answer 20

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

Question 21

Statue of limitations

Answer 21

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

Question 22

Informed consent

Answer 22

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

Question 23

Doctorine of Informed Consent

Answer 23

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)

Question 24

Therapeutic privelage

Answer 24

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

Question 25

Statutory Response to the Medical Malpractice “Crisis” or Tort reform

Answer 25

• 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

Question 26

Cos of medical treatment has fone up for many reasons not associated with lawsuits such as

Answer 26

cost of new equitments, building, technology and pool of elderly

Question 27

Substantive Changes to the law

Answer 27

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

Question 28

Remidial Changes to the Tort Reform

Answer 28

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

Question 29

Procedural Changes to Tort Reform

Answer 29

• 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

Question 30

Ways to avoid malpractice exposure

Answer 30

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

Question 31

Medical records

Answer 31

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