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Medical Liability
South Texas College of Law Houston
Carnahan, Sandra J.

 I.            Chapter 1 – Introduction to Health law and Policy
                  a.            Defining Sickness
                                      i.            The Constitution of the World of Health Organization defines health as “a state of complete physical, mental; and social well-being and not merely the absence of disease or infirmity” – is this even possible?
                                   ii.            Health can be viewed in a more limited sense as the performance by each part of the body of its “natural” function
                                 iii.            Illness can be defined as a subset of diseases. Boorse writes;
                                                       1.            An illness must be, first a reasonably serious disease with incapacitating effects that make it undesirable.
                                                      2.            Secondly, to call a disease an illness is to view its owner as deserving special treatment and diminished moral responsibility
                                                      3.            There are then two senses of “health”. In one sense it is a theoretical notion, the opposite of “disease”. In another sense it is a practical or mixed ethical notion, the opposite of “illness”
                                  iv.            Illness is thus a socially constructed deviance. Something more than a mere biological abnormality is needed. To be ill is to have deviant characteristics for which the sick role is appropriate. The sick role as Parsons has described it, exempts one from normal social responsibilities and removes individual responsibility
                                     v.            Katskee v Blue Cross/Blue Shield of Nebraska
                                                       1.            Appellant is pursuing an action for breach of contract. App had a history of breast and ovarian cancer and was diagnosed with a genetic condition. App was advised to have her reproductive organs removed. App considered her options and decided to have the surgery. She filed a claim with her insurers and her physicians also wrote to her insurers to explain the diagnosis and their basis for recommending surgery. Insurers sent a letter saying that they might pay for the surgery, but then later sent another letter saying it would not. App still had surgery and tried to claim after. The district court allowed summary judgment for the defendants. The insurers argue that their policy covers services which are ‘medically necessary’
                                                      2.            The definition of illness in the policy was a bodily disorder or disease, but no definition of bodily disorder or disease was given. The court said that whether a policy is ambiguous is a matter of law for the court to determine. The court said that, when an insurance policy is ambiguous it will be construed in favor of the insured. However ambiguity will not be read into policy language which is plain and unambiguous in order to construe it against the insurer
                                                      3.            When interpreting the plain meaning of the terms of an insurance policy, the natural and obvious meaning of the provision will be taken into account
                                                      4.            The court looked at the dictionary for definitions and concluded that the terms bodily disorder and disease aren’t ambiguous. So the next question was did the App have an illness. The insurers claim that she didn’t because she didn’t actually have cancer but instead had a predisposition to an illness. The doctor for the insurers who rejected the App’s claim was inexperienced in the area of cancer research but yet didn’t seek advice or a second opinion from a more knowledgeable source before rejecting the App. App’s doctors provided evidence which showed that App had a high risk of getting cancer and so the surgery was prophylactic – prevented the onset of cancer – as other procedures for detecting the onset of ovarian cancer are ineffective and once spotted treatment is relatively ineffective.
                                                      5.            Court found App’s condition to be an illness within the meaning of the policy. However it also recognized that not every condition which itself constitutes a predisposition to another illness is necessarily an illness within the meaning of an insurance policy.
                                  vi.            A more difficult problem area in defining disease involves those conditions or syndromes within the control of the individual, e.g. alcoholism 
                  b.            Alain Enthoven, What medical Care is and isn’t
                                      i.            Doctors cannot always give a clear cut diagnosis because a set of symptoms can be associated with any of several diseases
                                   ii.            For some many medical conditions there are several possible treatments, each of which is legitimate and associated with different benefits, risks and costs
                                 iii.            What is best in a particular case will depend on the values and needs of the patient, the skills of the doctor and the other resources available. The quality of the outcome depends a great deal on how the patient feels about it
                                  iv.            Caring for a patient can be open-ended (you can’t always tell if the problem has been ‘fixed’) especially when there is a great deal of uncertainty or when the patient has a chronic disease
                                     v.            To prove beyond reasonable doubt that a medical treatment is effective often requires what is called a ‘randomized clinical trial (RCT)’. In an RCT a large sample of patients is assigned randomly to two or more treatment groups. However many practical difficulties and in the way of doing a satisfactory clinical trial. As a result, RCTs are the exception, not the rule.
                                  vi.            One good reason for not having national standards of care established by government is to avoid either imposing unsubstantiated treatments or freezing them into current practice
                                vii.            Most medical care is a matter of ‘quality of life’. More medical care may actually be harmful. There is such a thing as physician-caused (iatrogenic) disease.
                             viii.            Physicians are concerned primarily with curing their sick patients regardless of the cost. But their use of resources is inevitably shaped by financial incentives.
                  c.            Quality in Health Care
Defining the nature of quality in health care – Avedis Donabedian
There are 2 types of management of quality in health care; technical and interpersonal.
                                                                         1.            Technical care is the application of the science and technology of medicine and of the other health sciences to the management of a personal health problem.
                                                                        2.            Its accompaniment is the management of the social and psychological interaction between client and practitioner. The first is called the science of medicine and the second its art.
There may also be a third element in care which could be called its amenities. These are properties of the more intimate aspects of the settings in which care is provided#
                                      i.            The institute of Medicine defined quality health care as the degree to which health services for individuals and populations increase the likelihood of desired health outcomes and are consistent with current professional knowledge
                                   ii.            Effectiveness is becoming the test for a medical treatment or test. The effectiveness initiative in modern medicine is based on three premises;

may encourage dogmatism and help perpetuate error
                                                                        b.            The emphasis on the need for technical interventions may lead to high cost care
                                                                        c.            The interpersonal process is slighted since process evaluation focuses on the technical proficiency of the doctor
                                                      8.            Outcome measures also have their problems however, the duration timing or extent of outcomes of optimal care are often hard to specify, it is often hard to credit a good outcome to a specific medical intervention and the outcome is often known too late to affect practice
                                                      9.            Data mining is searching through medical data using computer programs and now provides another approach to detecting bad outcomes in health care institutions.
                                vii.            Medical Practice variations and the nature of quality in medicine
                                                       1.            Medical practice variation highlights the role of uncertainty in the setting of medical standards. John Wennberg studies in this area. His studies of MPV are based on studies of 3 categories of care
                                                                        a.            Effective care – interventions that are viewed as medically necessary on the basis of clinical outcomes evidence and for which the benefits so outweigh the risks that virtually all patients with medical need receive them
                                                                        b.            Preference sensitive care – treatments for which there are two or more valid treatment alternatives and the choice of treatment involves tradeoffs that should be based on patient’s preferences
                                                                        c.            Supply sensitive care – services such as physician visits, referrals to specialists, hospitalizations and stays in ICUs involved in the medical (non-surgical) management of disease
                                                      2.            The attitudes of individual doctors influence the range of variation where consensus is lacking – Wennberg has termed this the practice style factor
                             viii.            Berry v Cardiology Consultants
                                                       1.            P (deceased) had several heart conditions and was given Amiodrane. P argues that this drug should not have been prescribed because the Physicians’ Desk Reference (PDR) indicates that this drug was approved for a specific heart condition which was not the one the P had. P’s principal argument was that the dose of the drug administered was more than what would have been permitted by the standard of care. P relied on the hospital’s algorithm in court as the standard of care for the administration of the drug, P also argued that there were risks involved in taking that drug which the P was not aware of and had he been he would have reacted differently to the onset of symptoms.