Physician liability causation defenses

Question 1

Affirmative Defenses to physician liability

Answer 1

1. Statute of limitations
   -> begins to run when:
   a. some knowledge of injury
   b. some knowledge of cause in fact
   c. some evidence of wrongdoing
2. Good Samaritan laws- protect volunteers that provide assistance in emergency (except for gross negligence)
   -> Important in public health emergencies

Question 2

Comparative negligence

Answer 2

If P less at fault than D, she can recover

Question 3

Contributory negligence

Answer 3

Absolute bar to recovery if P was also
negligent before D acted or at same time

Question 4

Avoidable consequences

Answer 4

P cannot recover for portion of harm she
could have avoided w/ ordinary care. P’s conduct after D commits tort.

Question 5

Particularly susceptible victim

Answer 5

D must take patient as he finds her &
consider underlying conditions.

Question 6

Aggravation of preexisting condition

Answer 6

D who aggravated P’s
preexisting condition liable only for amount of harm she caused.

Question 7

Assumption of risk

Answer 7

P agrees to take risk (e.g. nontraditional treatment)
& signs waiver

Question 8

Brook v. St. John’s Hickey Memorial Hospital

Answer 8

-Medical experimentation case
-Doctor’s judgment to inject contrast medium into calves instead of buttocks was not a medical experiment. Fischer reasonably wanted to avoid injuring sciatic nerve, and had successfully injected the medium into calves before.

Question 9

Ostrowski v. Azzara

Answer 9

What is legal significance of P’s pretreatment health habits?

Facts:

-P warned not to smoke/be an unhealthy fuckface

-P did anyway and had bypass surgeries on her stupid toe, had her leg amputated above the knee

-trial courts claimed that D 51% at fault, P 49% at fault

Holding:
Ostrowski court – Jury should not consider P’s pretreatment health habits
in determining causation

P’s noncompliance can be considered once treatment begins

“take them as you find them”