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Medical Malpractice
Temple University School of Law
McClellan, Frank M.

Medical Malpractice McClellan 2014
What is medical malpractice?
·        Medical malpractice is professional negligence by act or omission by a healthcare provider, in which the treatment provided falls below the accepted or applicable standard of care in the medical community and causes injury or death to the patient. Standards and regulations for medical malpractice vary by jurisdiction.
Medical malpractice claims
·         The parties
o   Plaintiff
§  Is/was the patient, or a legally designated party acting on behalf of the patient
§  Wrongful-death suit – the executor or administrator of a deceased patient's estate
o   Defendant
§  Health care providers
·        Theories
o   Tort theories for negligence on behalf of individual medical providers (doctors)
o   Vicarious liability or direct corporate negligence à  hospitals, clinics, managed care organizations or medical corporations for the mistakes of their employees.
·         Elements for a tort claim of negligence
o   Duty – duty was owed
o   Breach – The owed duty was breached
o   Causation – The breach caused an injury
o   Damages
·         Burden of Proof
o   Plaintiff has burden of proof to prove all the elements by a preponderance of evidence
o   There are instances in which the burden is lessened, or shifted
§  Res ipsa loquitor
§  Failure to act
·         Expert witnesses
o   At trial, both parties will usually present experts to testify as to the standard of care required, and other technical issues. The fact-finder (judge or jury) must then weigh all the evidence and determine which side is the most credible.
·        The fact-finder will render a verdict for the prevailing party
o    If the plaintiff prevails, the fact-finder will assess damages within the parameters of the judge's instructions. The verdict is then reduced to the judgment of the court.
o   The losing party may move for a new trial
o   Either side may appeal
Other considerations
·        Who pays? Healthcare financing, insurance – access to, eligibility, and it’s relationship with healthcare
·        Expert witnesses, other actors, and specialists – their role in medical malpractice cases
·        Plaintiff/Patient Liability? – Contributory negligence, consent
·        Tort reform in the medical malpractice system à Patients v. Healthcare providers
Treatment relationships – generally
·         Patients (seeking medical treatment, medical attention) ßà Medical provider
·         Doctors – primary care physicians (PCP’s), doctors at hospitals, specialists, surgeons
·         Nurses – triage (ER, entry), operating room, post-op care, etc.
·         Residents – specialized (i.e. surgical) residents, general residents
Formation of relationships
·         Medical providers and patients voluntarily enter into a relational contract
·         Consent on both sides
o   Except in emergency* situations
o   Express contract for treatment
o   Implied contract for treatment
Denying formation of relationships & Termination of relationships
·         OK to terminate relationship
·         NOT ok to abandon relationship
o   Patient dumping
o   Transferring to different place
o   See Burditt (4), Baby K,
·         Denial by private hospitals
o   Wideman (5), Wickline (4)
·         Denial based on statutes
o   §504 of the Rehabilitation Act
§   “No otherwise qualified handicapped individual in the U.S., as defined by U.S.C. Section 706(7) of this title, shall solely by reason of his handicap be excluded from participation in, or denied benefits of, or subjected to discrimination under a program or activity receiving federal financial assistance”
§  Handicapped defined – “any person who
·         (i) has a physical or mental impairment which substantially limits one of more of such person’s major life activities,
·         (ii) has a record of which an impairment, or
·         (iii) is regarded as having such an impairment
§  Distinction between decision-making based on bona fide medical judgment which is beyond the reach of § 504 RA and decision making based on handicap covered by § 504.
§  Does NOT apply to medical treatment decisions because it does not meet requirement of “otherwise qualified”, and bona fide medical treatment decision must be distinguished from decisions to treat based on individual’s handicap
§  US v. University Hospital (Baby Jane Doe)
·         Baby Jane Doe born with substantial defects including mental retardation. Parents elected NOT to have corrective surgery that would prolong life
·         Government filed claim attempting to force hospital to perform procedure, argued baby’s condition = “severe mental retardation” à handicapping condition that required same treatment (Discrimination prohibited under 504)
o   504 Rehab. Act = Prohibits denial of services by federally assisted institution because of handicap
·         Issue – Whether Jane Doe is “otherwise qualified” or was “subject to discrimination under § 504?
·         Court found not performing the surgery was not a violation under §504 of the Rehabilitative Act, and that it would be a burden to force hospital and override the parent’s decision
·         Dissent argued that handicapping is equivalent to discrimination by race
o   Government is not enable to override medical judgment but it may inquire about bona fide medical treatment when parental consent is not legit
·         Parents have the right to decide what is in the best interest for their child, government had no right to force them
o   To determine whether patient is “otherwise qu

the physician who complies with limitations when judgment dictates otherwise cannot avoid responsibility for his patient’s care
§  The issue here is whether or not there is a valid claim against a third party insurer because their system was negligent or corrupt? 
§  Policy View: Physicians must exhaust appealing decisions before liability is extended to third party payors
Duty to treat/provide care
·         Hospitals
o   EMTALA Requires that participating hospitals (both public and private) must provide emergency health care regardless of ability/inability to afford treatment, legal status, or citizenship
§  “Participating hospitals” = hospitals that accept money from the Department of Health and Human Services, Medicare, or Medicaid
§  “Emergency” = a medical condition or situation of such sufficient severity that it seriously jeopardizes bodily function or if pregnant, poses threat to life of mom OR baby
§  “Active labor” = Labor has begun, cannot be delayed
§  EMTALA required procedures:
·         Screen/Assess – Individuals requesting emergency care must receive emergency medical screening exam to determine if emergency exists
·         Stabilize – Must treat individuals with emergency medical condition until resolved or stabilized to the point that patient could set up discharge or set up to receive continual/further care (must be conscious, symptoms under control, etc.)
§  Transferring
·         Patient may be transferred to a different facility once patient has been assessed and stabilized, AND if treatment required could be better administered at another hospital
·         Burditt v. US Department of Health and Human Services BELOW
o   Patient dumping – Woman arrived in labor at ER, no prenatal care. P (doc) on call but refused to treat, ordered transport. Woman had life-threatening pregnancy-HBP, P knew of risk and complications. Also refused to read EMTALA guidelines, signed consent to transport, admitted he was worried about too much med liability. Refused to re-examine before transport, woman birthed on way
o   P violated EMTALA – subject to penalties
o   A patient diagnosed with an “emergency medical condition” or “Active labor” must be treated or transferred in accordance to EMTALA