HCQ Outline
Terry Spring 2011
Quality and Error
Key terms:
· Adverse eventà – injury caused by med managed v. underlying condition/ disease.
· Medical error- preventable AE 3 -5 % of cases. Over prescribing, wrong drug for patients.
· Medication error- preventable ent that may cause or lead to inappropriate medication use or patient harm while medication is in control of HC professional, patient, or consumer.
· Lost opportunities-???
When can Dr survive trial w/o expert & get to jury? Default rule is get an expert in health quality case. But what happens if expert does a surprise and harm.
1) Medical Negligence 101-
a) duty- usually contractual (express/implied), but not always
b) breach- custom is dominant SOC
i) negligence- reasonably prudent person standard
ii) professionals- required to use superior qualities he has in a manner reasonable under circumstances
iii) medical professionals-
c) cause in fact- compels issues of causation require expert testimony & sophisticated understanding. (Loss of chance (ie cancer)- if patient had been timely diagnosed would they have survived? But can show the patient loss a chance of survival, so it’s a major but-for cause).
d) legal cause-
e) affirmative defenses- SOL
Issue: summary judgment/ PF for MM
Rule: For SJ to succeed: moving party must prove there is no genuine issue of material fact and moving party is entitled to judgment as a MOL. P must est: Degree of knowledge of skill process (evidence of SoC); The D lacked skilled or failed to exercise (breach); Causation for injury. (Use the expert to determine these things). A plaintiff bringing a medical malpractice claim must prove:
· The degree of knowledge or skill possessed or the degree of care ordinarily exercised by a reasonably skillful, careful, and prudent health care professional engaged in a similar practice under the same or similar circumstances
· (2) That the defendant either lacked this degree of knowledge or skill or failed to exercise this degree of care; and
· (3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred
Analysis: Provost v. Fletcher Allen HC, ∏ sue ∆ hospital and physician for malpractice alleging that negligent actions on the part of physician resulted in permanent paralysis of ∏ pt. ∏ went to FAHC for severe allergic rxn and was treated w/ IM inj to left arm. ∏ had f/u w/ doc after numbness and pain in arm did not subside, doc Dx radial nerve palsy from hematoma beneath neuronal sheath from inj. ∏ got second opinion, who determined that he suffered significant impairment as a result of inj.
Conclusion: SJ was improper. Reverse and remand to trial. Court essential weighed ∏ expert theory against other possible explanations and granted SJ because ∏ had not eliminated those other theories Case demonstrates the elements for a PF case. SJ is improper where evidence is subject to conflicting interpretations, regardless of judge’s perceptions of comparative facts – can’t grant SJ just because on set of facts seems more likely than another. Court finds ∏ expert (Johansson) “sparsely” established standard of care and breach; court could have easily found the other way
DP Relationship
1) Freedom of K:
a) General- no duty to K/ or treat under any circumstances including ER situations. (CL rule). Not related o EMTALA
b) AMA Principles of med ethics VI- Dr is free to choose whom to serve, except in ER situations.
c) Limitations of K model
Issue: existence Dr/ patient relationship
Rule: Generally, D/P is only when Dr personally examines patient. Implied is when Drs gives advice thru another HC professional. Lack of direct contact does not preclude physician-pt relationship. 3 part test for D/P relationship when:
1) On call Dr participates in the diagnosis of the patient’s condition
2) Participates in or prescribes a course of treatment for patient
3) Owes a duty to the hospital, staff, or patient for whose benefit he’s on call. Once on –call DR who owes duty is contacted for the benefit of an ER patient, and a discussion takes place bw patient’s Dr and on-call physician regarding the patient’s symptoms, a possible diagnosis and course of treatment, a D/P relationship exists
Analysis: Sterling v Johns Hopkins Hospital, P alleges that D neg transferred P forom PRMC to Hopkins H while unstable & this negligent act contributed to her death. D filed for SJ claiming it’s rep, Dr. Khouzami didn’t have a Dr/ patient relationship w/ decedent. Here: does the fact that there is an on call doc mean that there is a physician-pt relationship? – Not by itself. McKinney establishes factor analysis
Conclusion: Lwr ct didn’t err in granting SJ b/c Hopkins thru its agent confirmed a diagnosis of a patient w/ whom it had no contact. The actions weren’t binding on primary Dr. Hopkins has no affiliation w/ PRMC and no pre-existing responsibilities to PRMC. Pull EMTALA Notes from HC Law notes
o Courts that have considered quality of care in context of EMTALA have said this does not create a national malpractice duty or standard of care
o Courts view EMTALA as a non-discrimination statute/regulation – cannot discriminate between two classes of pts
OH cts uses another touchstone: did Dr. consent to treat the patient? Can it be implied from on-call status. They use this rather than McKinney.
· Affirmative action to participate in care and treatment
· Acceptance of transfer w/o K insufficient as matter of law?
· Or still under control of Dr. Gray as matter of fact.
A broader objective factor analysis is more efficient rule says Prof
Issue: PP relationship, curbside
rvice for reasonable time to allow patient to secure another
Cont’ treatment is doc that tolls (pauses) SOL. SOL has 2 parts:
1) Accrual dates
2) Period of limitation
Here are some things that Drs can do can pause SOL:
age of patient so SOL wont run until patient reaches age of majority.
Dr fraudulently conceals
If relationship bw Dr/ P, then it’ll be con’t treatment
R2nd se314- actors don’t owe positive duties to other. (ie saving kid from drowning)
· Exceptions: when starts to rescue then messed up. R2nd 323
· R2d 315- another exception: where there’s a special relationship
Issue:3P patients/ negligent failure to warn
Rule: Dr owes duty to 3P … when where Dr has neg failed to warn patient that meds may impair driving ability and where circumstances are such that the reasonable patient could not have been expected to be aware of the risk w/o Dr’s warning. Factors to consider of whether reasonable patient could’ve been expected to be aware of risk include:
1) Relative knowledge of risk as between lay persons and Drs
2) If patient has previously used medication and/or exp the adverse effect
3) Whether a warning would otherwise have been futile
Analysis: McKenzie v. Hawaii Permanente, MM case to recover $ from injuries suffered by P who was injured when she was hit by car driven by Wilson. Wilson fainted while driving b/c of adverse effect of meds neg prescribed by Wilson’s Dr.
Conclusion: Non-patient owed duty where dr neg fails to warn patient.
Issue: Dist MM v. Neg
Rule: whether the alleged negligence bears a substantial relationship to the rendition of medical treatment by the medical professional where Dr has patient but what Dr does have ramification for 3rd person.( similar to 3P patien. DEpendons of CL model of foreseeability.
Analysis: Draper v Westerfield, ∏’s child died as a result of injuries inflicted on her by child’s father and ∏ (mother) brings suit against Dr. Westerfield claiming that he had a common law duty to report suspected abuse to the authorities. Dr was retained by child services, who sought second opinion of her x-rays; there is contention about what Dr said and what advice he gave (he says that he told child services he suspected abuse, the social worker claimed he said nothing about abuse).
