Regulation Via State Common Law: Medical Malpractice Flashcards
Duty
Duty in med mal cases is based on contractual relationship between doctor and patient. Whether such a relationship has been established is often determined by whether the doctor has knowingly acted to diagnose, treat, or advise the patient.
It may also be established prior to any contract where the doctor has contracted to provide services to a hospital unit or managed care panel. (Lection).
An actor ordinarily has a duty to exercise reasonable care when the actor’s conduct creates a risk of physical harm.
Evidentiary standard: preponderance of the evidence
Fact specific inquiry
Judge decides duty (other elements decided by jury)
Formation of Provider-Patient Relationship under Duty
Formation of a Provider-Patient relationship can be created by:
Pre-existing relationship: a unterminated relationship already exists, Express written contract
Express verbal contract
By implication
Express written contract between doctor and hospital doctor and managed care organization
R: Once a provider/patient relationship is formed, the provider has a duty to:
Not abandon patient
Obtain informed consent to treatment
Keep treatment information confidential
Termination of Provider-Patient Relationship under Duty
A provider-patient relationship can only be terminated by:
(1) the cessation of the necessity which gave rise to the relationship; (problem goes away)
(2) the discharge of the physician by the patient; (patient fires doc)
(3) the withdrawal from the case by the physician after giving the patient reasonable notice so as to enable the patient to secure other medical attention (doc fires patient but has to give reasonable notice)
IF physician withdraws → A physician has the right to withdraw from a case, but if the case is such as to still require further medical or surgical attention, he/she must: before withdrawing from the case, give the patient sufficient notice so the patient can procure other medical attention if he/she desires:
Give list of emergency resources (people that can provide treatment for them)
Emergency resources
Date of last treatment (reasonable number)
Breach
3 standards to use along with Geographic Standards (Where we call in Experts)
- Minimally competent/Minimally acceptable level of care
Doctor has to use the type of care that a minimally competent physician would use in other circumstances - Customary or Ordinary Care
Jury must decide whether the doctor’s conduct was within the range of appropriate conduct in the medical field. Custom can range based on locality rule.
Custom is playing a completely diff role in med mal than other negligence cases
If physician complied with standard, they are not liable even if jury feels strongly that the Dr. should have acted differently - Reasonably Prudent Physician
Jury decides whether the physician behaved reasonably, not whether she complied with custom
Reasonable care (as compared to other physicians)]
Geographic Standards in Breach
(1) Strict Locality Standard: Did the doctor provide the level of care that a reasonable physician would have in this locality?
(2) National Standard: Did the doctor provide the level of care that a reasonable physician would have in the U.S. ? (Most states follow this- Plaintiff -friendly standard)
(3) Same of Similar Locality: Did the doctor provide the level of care that a reasonable physician would have in this locality?
Res Ipsa Loquitur (Proves Breach)
R: RIL in proving breach allows the plaintiff to establish breach and survive a MTD. Jury is free to draw or refuse to draw the inference that D was negligent based solely upon occurrence of the accident.
Traditional RIL test:
Event is of a kind which ordinarily does not occur in the absence of negligence
The cause of the injury is shown to be under exclusive control and management of the defendant
Plaintiff did not negligently contribute to the event
Clinical Innovations (Breach)
For cases involving clinical innovation, the reasonable physician standard is used in clinical innovation cases (mostly) even when it seems like they are using the custom standard. Some factors that we look at are physician intent, the type of population they used it on, etc.
Practice Guidelines
Practice guidelines are a way to add weight to the argument that the standard of care was breached or to show the standard of care was followed. Practice guidelines are formed by different entities. In court, guidelines are primarily brought in by experts who use it to inform their opinion. They are useful, but not dispositive. In practice, physicians are “encouraged uniformity” with practice guidelines, but it is not required nor presumed.
Admit it through the expert → don’t determine
Expert Testimony
Role of experts will vary by state, but in general, expert witnesses should be able to:
Identify the applicable standard of care
Indicate that based on reasonably available evidence there is a reasonable likelihood that the plaintiff will be able to show that the defendant failed to meet that standard of care
Indicate that there is a reasonable likelihood that P will be able to show that D’s failure to meet the standard of care caused P’s injury.
Exceptions to Expert Testimony
Expert testimony is not needed to prove the relevant standard of care when the lack of care or skill is so apparent as to be within the comprehension of a layman and require only common knowledge and experience for an understanding of it.
→ IF competing opinions in expert testimony: then it is within the jury’s province to make determinations as to the weight of evidence and the credibility of witness testimony
Causation
(1) But For Test: But for the defendant’s negligence, would the plaintiff have suffered the harm(s)? Standard: Preponderance of the evidence.
If Multiple Concurrent Sufficient Causes: if MCSC occur, each of which alone would have been a sufficient factual cause of the physical harm in the absence of the other act, each act is regarded as facutal cause of harm
(2) Relaxation of Preponderance Standard: Courts will relax the usual Preponderance standard for torts in med mal cases so that a case can go to the jury. Oftentimes, it is difficult to prove with any degree of certainty that the harm was a result of the defendant’s negligence of the natural outcome of that person’s disease process. As a policy matter, we do not want to dismiss all medical malpractice cases.
(3) Loss of Chance: A loss of chance rule reconceives the harm from a bad outcome to the loss of opportunity for a better outcome. But for the defendants negligence, and by a preponderance of the evidence, is it more likely than not that the patient would have had access to a better outcome?
Damages
(1) Collateral Source Rule
(2) Single Recovery Rule (Can recover at a single time)
(3) Non-Pecuinary Harm
Defenses
(1) Two Schools of Thought Rule
(2) Contributory Negligence
(3) Comparative Negligence
(4) Avoidable Consequences + Duty to Mitigate
(5) Eggshell Plaintiff
(6) Statues of Limitations and Repose
(7) Waivers
(8) Good Samaritan Laws