Medical Malpractice & Informed Consent

Question 1

Medical Malpractice

Answer 1

• Standard of Care – must be set my medical professionals
• Role of Custom – is custom local or national? What about innovative treatments
• Questions of Proof

Question 2

Prima Facie Medical Malpractice Case

Answer 2

1. P must affirmatively prove the relevant recognized standard of medical care and that D departed from that standard
2. P must present expert witnesses since technical complexity prevents jury from determining the appropriate standard of care
   * *THERE CAN BE NO NEGLIGENCE WITHOUT EXPERT TESTIMONY TO SUPPORT IT!

Question 3

Sheeley v. Memorial Hospital

Answer 3

• Ruled in favor of national standard of care
• clarified that expert witnesses do NOT have to come from exact field as D BUT must come from same medical field as alleged malpractice
• *BOARD CERTIFIED should be presumptively qualified

– trial judge has the discretion to determine expert witness’ qualifications

Question 4

Matthies v. Mastromonaco

Answer 4

• informed consent applies to both invasive and noninvasive procedures
• Reasonable Patient Standard + Material Risk
• Failure to obtain informed consent is a form of medical negligence

Question 5

Reasonable Patient Standard

Answer 5

Physician is obligated to disclose only information material to reasonable patients informed decision

– measuring materiality is based on whether a reasonable patient (in the patient’s position) would have considered the risk material to assure informed consent

Question 6

Doctrine of informed consent

Answer 6

Did physician adequately present the material facts so patient can make an informed decision?

For consent to be informed, the patient must know not only the alternatives the physician recommends but the medically reasonable alternatives the physician does not recommend

FAILURE TO OBTAIN INFORMED CONSENT IS A FORM OF MEDICAL NEGLIGENCE!

Reasonable person can be slightly subjective to P BUT cannot be too subjective.

Question 7

Physicians standard of care

Answer 7

National standard

• • Dr’s make their own standards/customs and cannot be overruled by jury
• • residents are held to the same standards as doctors

Question 8

Expert Witness

Answer 8

Must come from same field as alleged malpractice

–board certified in same field as alleged malpractice = automatically qualified

Question 9

Consent v. Custom

Answer 9

Consent - I didn’t consent because I didn’t know and understand the risks of the procedure

Custom - execution was wrong (medical malpractice); b/c you didn’t adhere to custom, you enhanced the risks of the procedure

Question 10

Objective Standard of Causality

Answer 10

What would a reasonable patient, in the patient’s position, have decided if suitably informed?