HEALTH LAW
BOOZANG, COLEMAN, MALDONADO
SPRING 2017
Duties Related to Patient Care
Duties Related to Patient Care
Good Samaritan Statute = When someone treats you in the street not acting in the capacity of a hospital or doctor’s office.
Gross Negligence Standard to be liable for patient injuries
Generally only an ordinary standard of negligence when a physician is acting in an emergency or a physicians capacity.
Health Care Providers
Common Law
Statutory Exceptions: EMTALA
Federal Nondiscrimination Statutes
Content of the Duty to Treat (how to regulate the Standard of Care)
Duty to provide a certain level of care to patients and various mechanisms for ensuring quality of care. Includes: tort standards, contractual agreements, regulatory requirements, and market-based influences.
Quality is largely regulated with INCENTIVES (tort incentive is not to get sued and fined, contracts have incentive to provide good service or no pay, vicarious liability incentive is for HMOs to make sure they have good doctors and help, etc.)
In Tort: Medical Malpractice and Informed Consent
Duty of Informed Consent
Patient must be informed of the steps of the procedure, the risks, the rewards, and consent to receiving the treatment.
Affirmative Duty to Inform, all material information regarding recommended treatment, and alternatives. (risk, reward, steps).
Vicarious Liability of Managed Care Organizations
Vicarious liability = a form of STRICT LIABILITY! Does not need proof of fault to be liable.
Hospital or entity is held liable as well as doctor for injuries caused
Agency = one theory, liable as employer
Negligence = other theory, failed to supervise, hire, or discipline a physician, and allowed them to do bad stuff.
= Hospital is employer of doctors and is vicariously liable for doctor’s mistakes and injuries caused.
Apparent Agency (fill in with notes)
Put up signs to void apparent authority “doctors are indendent contractors”
Usually used to show vicarious liability for HMO (hospital) when they fail to express that the doctors are independent contractors and not employees under the hospitals control.
(1) HMO held itself out as the provider for healthcare without informing patient the doctor was independently providing care and (2) that the patient justifiably relied upon the conduct of the HMO by looking to the HMO to provide health care services rather than to a specific physician.
Implied Agency (fill in with notes)
Actual Authority, circumstantially provided.
Can be used to show vicarious liability when HMO exerted sufficient control over the alleged agent (doctor) so as to negate the person’s status as an independent contractor, at least with respect to the perception of a third party.
ome JDs emergency room doctors are implied as employees of hospital
When the situation would lead a reasonably objective person to believe the doctor is an agent of the Hospital and not independent of the organization.
= an emergency medical condition refers to a condition for which IMMEDIATE MEDICAL ATTENTION is necessary to avoid SERIOUS HARM
Must treat patients that are admitted through the emergency room.
Only DUTY TO STABILIZE and not a duty to completely treat all illnesses.
In Contract: Waivers and Warranties
Complete waivers for negligence and mistreatment is not enforceable.
Courts have been willing to enforce contracts limiting the remedies available or the forum for resolving disputes.
E.g. Arbitration clauses, cannot sue in court, must mediate, must
and ENFORCE!
People best suited to judge and oversee quality are the people involved themselves.
Hospital committees made up of doctors, that review policies and procedures or certain other assessments like disciplining a doctor or admitting a doctor.
Physicians are reviewed by peers to get access to do procedures at specific hospitals, specific procedurs and purposes.
Kadlec Medical Center v. Lakeview
Peer Review, Disclosure
Sithian v. Staten Island Univ. Hosp.
HCQIA – a member of a professional peer review committee is IMMUNE from a lawsuit if they comply with 4 reasonables
Reasonable believe that the action was in furtherance of quality of health care
After a reasonable effort to obtain the facts of the matter
After adequate notice and hearing procedures are afforded to the physician involved.
In the reasonable belief that the action was warranted by the facts known after such reasonable effort to obtain facts and after the meeting the requirement of paragraph (c).
Basically you are immune from liability in a peer review group if you acted reasonable and in good-faith.
Have to pay peer reviewers attorney’s fees because case was frivolous.
Helps and incentivizes doctors to participate in peer reviews without being liable.
Applegrad v. The Valley Hospital:
Evidenciary document
Whether to apply health dept. rules retroactively to allow patient to get the records they were seeking.
