Medical Malpractice Outline

Medical Malpractice – Eric Britcher – Fall 2012

Ch 1: Nature of Medical Malpractice (see Model Jury Charge 5.50A and 5.50G)

I. Generally Accepted Standard of Care (Ch 1)

i. Malpractice –deviation from the standard of care proven by a consensus of the medical community and literature

1. Medical Malpractice –requires expert witnesses to show a deviation from the standard of care

ii. Elements

1. Deviation from a standard of care

2. Proximate Causation

3. Damages

iii. Judgment –not malpractice

1. Issue becomes an informed consent issue.

2. Need to also show that it was what a vast majority of the medical community would have done.

3. Standard of Care allows for the exercise of judgment when there are more than one plausible outcomes.

iv. Plaintiff versus Defendant

1. Plaintiff argues it was a deviation from the standard of care

2. Defendant argues it was a judgment call

a. You can comply with the standard of care but breach the duty of informed consent.

v. Battery –No need to show a deviation from the standard of care

vi. Specialists and general practitioners are held to diff standards. There are also stds applied to students and those in residencies

vii. You are defined by the type of medicine you are practicing, not the type you go to school for (ie, if you are a board certified ophthalmologist who is performing plastic surgery, you are held to the standard of a plastic surgeon)

viii. Elkerson v. NJ Blood Center

1. Explains difference b/w generally accepted std of are and reasonably prudent std of care

2. If standard of care is below what reasonable doctor would do, Dr cant defend by saying he complied with SOC

a. cannot use this as a defense à there are constant advances in standard of care!

b. Industries are not to be left just to their own practices or customs – must not just be custom, but reason pru practice

b. Cases, Key Facts, & Holdings

i. Carbone v Warburton

1. Plaintiff must, through expert testimony

a. Establish the standard of care

b. Show that defendant deviated from that standard of care

ii. Clark v. Wichman

1. Doctor is not liable for an honest mistake of judgment

2. Evidence of mere mistake or error is insufficient to sustain an action for negligence

iii. Schueler v. Strelinger

1. If doctor didn’t operate plaintiff would have bled to death à exercise of judgment is reasonable

2. Dr must be allowed a wide range of reasonable exercise of judgment

a. Not guilty of med mal if his judgment doesn’t depart from the requirements of accepted medical practice

b. Drs free to choose from 2 or more med accepted alternatives

3. Med judgment is about whether the med profession allows a choice b/w competing acceptable medical choices

iv. German

1. Doctor must exercise in the treatment of his patient the degree of care, knowledge, and skill ordinarily possessed and exercised in similar situations by average member of the profession practicing in the field.

v. Schrantz

1. Expert witnesses can’t give opinions unless they’re reasonably medically probable and not mere possibilities

vi. Zuidema v. Pedicono

1. Not all deviations from std of care = malpractice

2. Sexual activity does not constitute medical malpractice

a. Not proper, but cannot alone support a claim for med mal

b. (note to Keller = you can fuck your patients)

II. The Role of Physician’s Judgment

a. Cases, Key Facts, & Holdings

i. Carbone

1. Conspiracy of Silence –reluctance of most physician to testify in med mal cases

ii. Shueler

1. If there are 2 options that are consistent with the generally accepted standard of care, physician is not negligent for choosing one over the other.

2. The fact that a good result may occur with poor treatment and that good treatment will not necessarily prevent a poor result must be recognized.

iii. Walck

1. Reasonable judgment is a defense.

iv. **Morlino

1. Under Civil Model Jury 5.50A, physician is not liable if in the exercise of his judgment, he made a mistake.

2. Mistake is not equivalent to a deviation from the standard of care.

v. Aiello v Muhlenberg Regional Medical Center

1. Not a judgment charge in cases where defendant’s skill in performing a surgical procedure or failure to exercise reasonable care in rendering treatment.

2. Hobson’s Choice –2 or more courses of action which comply with standard of care, each with benefits/risks.

3. Judgment charge is allowed when there are a few different courses of action that comply with standard of care but it DOES NOT apply in surgical mishaps where judgment wasn’t employed.

vi. Velazquez v Portadin

1. When most of the case implicated deviation from the standard of care, it doesn’t become a judgment charge.

a. Judgment charge should be limited to cases where Dr exercised judgment in selected b/w acceptable courses of action

vii. Patton v Amblo

1. Surgeon cut too deep and it couldn’t be a judgment call.

a. This wasn’t about the type of surgery performed, but the skill used to perform it

viii. Most Cases

1. If it’s a judgment charge, court must give informed choice/consent charge. Doctor must disclose all viable options.

III. Personal Standards do not establish std of care (Ch 1 – 3)

a. Cases, Key Facts, & Holdings

i. Fernandez v Baruch

1. SJ was granted because expert testified to his own personal opinion, not generally accepted medical standard.

ii. Sesselman v Muhlenberg Hospital

1. Can’t disclose personal opinion. Must discuss the standard of care and show a deviation from such.

iii. Nguyen v Tama

1. What defendants said was the personal opinion of the expert was really the minimum standard of care.

2. While expert must testify to std of care which is not personal to the expert, expert is not required to produce a treatise or other documentary evidence of the std of care to support his opinion

IV. The Duty of the Examining or Consulting Physician (Ch 1–4)

i. A med professional who examines someone for the benefit of the 3rd party may owe a duty of care to them.

b. Cases, Key Facts, &