Medicine & Law Cases Flashcards
Bang v. Charles T. Miller Hospital
This case addresses medical battery and informed consent.
This is a clear-cut informed consent case in which the plaintiff consented to TURP without having been fully informed by the physician as to what his consent entailed. In fact, a consequence of the procedure was sterilization. The court found that the doctor had committed a battery on the patient by conducting the procedure without properly informing him of its consequences.
http://islandcourt.blogspot.com/2014/01/bang-v-charles-t-miller-hospital-court.html
Berthiaume v. Pratt. M.D.
This case addresses invasion of privacy.
Hicks v. Arkansas State Medical Board
This case addresses invalid administrative regulations.
Licensed cosmetician, desired to offer ear piercing as a service to her customers. She filed a petition with the Arkansas State Medical Board requesting a declaratory ruling that the piercing of ears was not within the definition of the practice of medicine or surgery.
http://islandcourt.blogspot.com/2014/01/hicks-v-ark-state-medical-board.html
Shilkret v. Annapolis Emergency Hospital
This case addresses standards of care.
A physician is under a duty to use that degree of care and skill which is expected of a reasonably competent practitioner in the same class to which he belongs, acting in the same or similar circumstances. Under this standard, advances in the profession, availability of facilities, specialization or general practice, proximity of specialists and special facilities, together with all other relevant considerations, are to be taken into account.”
It is important to note that the court does not put the standard of care at the level of an average physician. Adopting a standard drawn from the Restatement (Second) of Torts this court states:
“(The standard) is not that of the most highly skilled, nor is it that of the average member of the profession . . ., since those who have less than median or average skill may still be competent and qualified. Half of the physicians of America do not automatically become negligent in practicing medicine at all, merely because their skill is less than the professional average.”
Canterbury v. Spence
This case addresses the therapeutic privilege exception to informed consent.
Against Dr. Spence it alleged, among other things, negligence in the performance of the laminectomy and failure to inform him beforehand of the risk involved.
It is the settled rule that therapy not authorized by the patient may amount to a tort—a common law battery —by the physician.
Cobbs v. Grant
This case addresses the therapeutic privilege exception to informed consent and reaches a slightly different conclusion than Canterbury.
A disclosure need not be made beyond that required within the medical community when a doctor can prove by a preponderance of the evidence he relied upon facts which would demonstrate to a reasonable man the disclosure would have so seriously upset the patient that the patient would not have been able to dispassionately weigh the risks of refusing to undergo the recommended treatment. (E.g., see discussion of informing the dying patient: Hagman,
Judgement is reversed
Olson v. Molsen
This case addresses public policy and the invalidity of exculpatory contracts in medicine.
Janet H. Olson, a pregnant, twenty-three year old unmarried woman, contacted Bob J. Molzen, at the time a practicing osteopath in Knoxville, and engaged his services for the performance of an abortion.
The abortion was then performed and two weeks later she returned to the Doctor’s office for a check-up. She testified that she told him she “had been experiencing this nausea and that I didn’t feel good.” He gave her a vaginal examination and told her “that everything was fine.”
About the middle of November she consulted a Knoxville gynecologist who advised her that she was pregnant and it was too late to perform an abortion.
As a direct consequence of this transaction, Janet Olson placed her person under the control of Dr. Molzen subject to the risk of negligence after he had demanded that she contract away any cause of action that might arise.
A professional person should not be permitted to hide behind the protective shield of an exculpatory contract and insist that he or she is not answerable for his or her own negligence.
Schneider v. Revici
This case addresses alternative medicine and assumption of risk
A patient can choose an unorthodox treatment in lieu of those therapies offered by allopathic medicine, but a physician needs to be careful when dealing with this patient.
Use an ‘Assumption of Risk’ form rather than a standard ‘Informed Consent’ form. Chart that the patient choose alternative therapy with knowledge that choosing it may expose the patient to unknown risks.
The ‘Assumption of Risk’ puts the burden of failure on the patient. An ‘Informed Consent’ risks giving the impression that the physician is offering alternative medicine and, thereby, himself shouldering the potential liability of unexpected and unwanted outcomes. POINT: Choose assumption of risk rather than informed consent when a patient insists on alternative medicine in lieu of, or in addition to, medical treatment at the accepted standard of care. This is also the recommendation of malpractice insurance carriers.
http://islandcourt.blogspot.com/2014/01/schneider-v-revici-md-assumption-of.html
CIVIL STANDARD OF PROOF
The standard or proof in a civil case is the ‘Preponderance of the Evidence’ standard, meaning the plaintiff (person suing) has to prove that it is ‘more likely than not’ that his claim is true. Sometimes this is given as 51% proven. It is the lowest standard of proof and it is the standard used in civil cases like medical malpractice.
CIVIL CASE
A civil case is for dispute resolution such as a contract dispute, a property dispute, collection of a debt, or a medical malpractice case.
STATUTE OF LIMITATIONS
The statute of limitations is a law that sets a time limit within which a lawsuit must be filed or be lost forever. The time limit can vary depending on the nature of the suit and the circumstances. A medical malpractice suit usually has a relatively short statute of limitations. If the statute is one year and your doctor cuts off your right foot instead of your left foot (clearly malpractice) you have a good cause of action for malpractice, but you MUST sue within the one year allowed. If you show up and try to sue in one year and a day, you are too late and your cause of action is dead…you can’t sue. I think that the statute of limitations played a role in the Canterburyinformed consent case. If the court used the usual battery argument for lack of informed consent the case was dead because the medical battery statute of limitations was one year and the year had passed, so the court chose to consider a cause of action with a longer statute of limitations so the plaintiff could still pursue his claim in the trial court.
Doctors & Crime. Doctors are most likely to have criminal charges related to:
Reckless Behavior (as in the case of Michael Jackson’s doctor)
Medicare Fraud
Insurance Fraud
Narcotics
Coding Errors in Medicare
Cause of Action
An issue or event that can be sued upon. A cause of action can come from:
Tort (medical malpractice, for example)
Contract
Statute (elder abuse law, for example)
Constitution
Cruzan case
U.S. Supreme Court upheld a ‘clear and convincing’ standard to be met for evidence that a person in a persistent vegetative state would want to have a ventilator or artificial nutrition and hydration stopped.
Vicarious Liability
legal liability arising from acts of others.
