Medical Malpractice Outline

Medical Malpractice Outline
Outlined Spring Semester 2012
Professor Marsha Ryan
Liability and Quality Issues in Healthcare: 6th Edition
 
Chapter 4: The Professional–Patient Relationship
   Introduction:
–          The focus of legal duties and ethical analysis begins with the individual physician, who has primary responsibility for seeing the patient, diagnosing the problem, and prescribing the treatment.
–          Healthcare today is however delivered in a variety of settings–hospitals, ambulatory care clinics, nursing homes, doctor’s offices.
 Esquivel v. Watters
–          Sex of the Baby Case
–          No patient healthcare provider relationship existed between the plaintiff and defendant because the defendant did not undertake to advise the plaintiff regarding any disease, illness, or medical condition. It undertook only to determine the gender of the baby.
 
 
I.                   The Contract Between Patient and Physician
                                                               i.      The physician–patient relationship can be considered initially as a contractual one.
                                                             ii.      Physicians in private practice may contract for their services as they see fit, and retain substantial control over the extent of their contact with patients.
                                                           iii.      Physicians have no obligation to offer services that a patient may require that are outside the physicians competence and training; or services outside the scope of the original physician–patient agreement, where the physician has limited the contract to a type of procedure, to an office visit, or to consultation only.
                                                           iv.      Physicians may also expressly contract with the patient for a specific result.
                                                             v.      Once the physician–patient relationship has been created, physicians are subject to an obligation of “continuing attention.”
1.      Express written contract is rarely drafted for specific physician–patient interactions.
2.      An implied contract is usually the basis of the relationship between the physician and patient.
                                                           vi.      When the patient goes to a doctor's office with a particular problem, is offering to enter into a contract with a physician. When the physician examines the patient, she accepts the offer and an implied contract is created.
1.      The physician is free to reject the offer and send the patient away, relieving herself of any duty to the patient
                                                         vii.      The apparent voluntariness of the physician–patient relationship and its reciprocity, i.e., a fee for a service, or consideration, make the relationship look like a traditional contract. In other ways, however, the analogy to a contract is limited.
1.      1st, the terms of the contract are largely fixed in advance of any bargaining, by standard or customary practices that the physician must follow at the risk of liability for malpractice
2.      2nd, professional ethics impose fiduciary obligations on physicians in a variety of ways
3.      3rd, professionals are constrained in their ability to withdraw from their contracts by case law defining patient abandonment.
b.      Physicians and institutions
                                                               i.      Physicians who practice in institutions must provide healthcare within the limits of the health care plan coverage or their employment contracts with the institution
                                                             ii.      In such a case, the contract between the physician and the patient is preceded by an express contract spelling out the details of the relationship.
                                                           iii.      Physicians who are members of a hospital's medical staff have duties created by medical staff privilege bylaws; physicians who are part of healthcare maintenance organizations have a duty to treat plan members as a result of their contractual obligation to the HMO.
1.      In these situations, the express contract is between the physician and health plan, and the subscriber and the plan, with an implied contract between the subscriber and the treating physician.
a.      Millard v. Corrado
b.      On call Surgeon Case
c.       The court held that on call physicians owed a duty to reasonably foreseeable emergency patients to provide reasonable notice to appropriate hospital personnel when they will be unavailable to respond to calls. Further, since plaintiff adequately pleaded both a general negligence claim and a medical negligence claim, and because there were material questions of fact as to the existence of a physician-patient relationship, the trial court erred in entering summary judgment.
2.      A physician who has staff privileges at a hospital also agrees to abide by Hospital bylaws and policies and has therefore agreed to a doctor–patient relationship with whomever comes into the hospital, according to most courts that have considered the issue.
3.      Physician contract obligations bind them to treat individual subscribers, and may extend to further obligations, such as completing a variety of benefit forms for a patient.
a.       If these forms are not properly and timely completed, and the patient suffers an economic detriment, courts have held that a suit for breach of contract will lie.
4.      Physicians who are part of managed-care networks have a contractual relationship with the plan that requires them to treat subscribers.
c.       Specific promises and warranties of cure
                                                              i.      Mills v. Pate
1.      Liposuction Case
2.      Breach of express warranty claim.
3.      The doctor's particular representations were actionable as an express warranty claim in that his representations did not conform to the character and quality of the services promised, they formed the basis of the parties bargain for the 1st surgery, and injury resulted to the plaintiff.
                                                             ii.      A contract claim may have several advantages for the plaintiff.
1.      The statute of limitations is typically longer than for a tort action.
2.      The plaintiff need not establish the medical standard of care and thus may not need to present expert testimony.
3.      A contract claim may be viable even when the doctor has made the proper risk disclosure, satisfying the requirements of the tort doctrine of informed consent.
4.      A contract claim offers a remedy to the plaintiff who underwent the procedure because of the enticements of the physician.
                                                           iii.      The contract between the physician and patient can be breached in a variety of ways:
1.      For example, the physician may promise to use a certain procedure and then use an alternative procedure.
                                                           iv.      Breaches of warranty claims have been rare against health care providers.
1.      A breach may be found where the doctor promises a particular result, which fails to occur.
a.       An example would be a doctor telling a patient that everything will go perfectly back to normal after an operation. (i.e. your hand will be in perfect condition after the surgery).
2.      The measure of damages in a breach of contract suit might be “expectancy” damages, that amount sufficient to place the plaintiff in the position he would be in if the contract had been performed; or
3.       “Restitution” damages, an amount equivalent to the benefit conferred by the plaintiff upon the defendant.
                                                             v.      Courts will sometimes allow contract claims, but then defined the “contract” restrictively.
1.      Courts typically distinguish “therapeutic assurances” from express warranties to effect a cure.
d.      Exculpatory clauses
                                                              i.      Tunkl v. Regents of Univ. of California
1.      Case where patient signed the release, releasing the hospital of liability from negligence.
2.      Releasing liability is not okay if public interest is at stake. Factors to look at include whether or not the institution is subject to public regulation, whether the service in question is a crucial necessity, whether the hospital is performing the service on all members of the public who qualify, whether the hospital has a decisive advantage in bargaining and whether the signee is placed in control of the negligent party. A hospital case falls into all of these categories and thus this term is against public policy.
                                                             ii.      Courts typically uphold waivers of the right to sue, if:
1.       The waiver of negligence is clearly described,
2.      The activity is a voluntary one,
3.      The waiver freely given by a party who understands what he is giving up,
4.      And there is not a serious imbalance of bargaining power.
                                                           iii.      Courts view such waivers as a valid exercise of the freedom of contract.
e.       Partial limitations on the right to sue
                                                               i.      Protecting deeply held religious or other beliefs
1.     Shorter v. Drury
a.       Case where Jehovah witness refused blood transfusion.
b.      Contracts against liability for negligence our valid except in those cases where the public interest is involved. The release in the present case was not against public policy. The defendant specifically accepted the risk, which might flow from a refusal to accept blood. However, the Plaintiff did not accept the consequences of the Defendant’s negligence, which was the proximate cause of the plaintiff’s death. Therefore, the defendant was not released from his negligence.
2.      Shorter offers a defense of a partial waiver, u