Medical Malpractice – Prof. Noah – Spring 2007
1. Introduction: Medical Errors
hospitals are paid the same amount regardless of their error rates
areas that affect patients:
1. medication errors
2. wrong-site surgery (wrong operation, wrong side of body, or wrong patient)
3. hospital-acquired infections
4. fatigue and supervision
5. nursing shortage
I. Nature of Duties
2. Duty to Treat
patient-provider relationship is a consensual one to which both parties must agree
generally, physician may refuse to accept patients for any reason or no reason
hospitals may not turn patients away in emergencies until the patient has stabilized
doctors and hospitals cannot turn patients away because of race, sex, or HIV status
once treatment has begun, it may not cease until proper arrangements have been made
providers may not impose unreasonable conditions on their agreement to treat
Hurley v. Eddingfield (p.72):
doctor was free to refuse patient
Wilmington General Hospital v. Manlove (p.73):
liability may be imposed if they refuse service and there is an unmistakable emergency, if the patient has
relied upon a well-established custom of the hospital to render aid in such a case
Wideman v. Shallowford Community Hospital (p.77):
no statutory or constitutional right to medical treatment
-only when the state or municipality exercised control or care and placed the person in an otherwise
worse situation
here, no coercion, dominion, or restraint to create a “special relationship”
once a patient recovers from an illness or stops seeking treatment, a new treatment relationship must be formed in
order to invoke a duty of continuing treatment
duties:
doctors: no duty to treat, even in emergencies, unless the doctor is on call
hospitals:
1. a common law duty to treat severe emergency patients regardless of payment
2. common law and regulatory duties to treat all patients who can pay
3. no enforceable duty to treat non-emergency or mild emergency patients who cannot pay
3. EMTALA
Burditt v. U.S. Department of Health and Human Services (p.87):
Emergency Treatment and Active Labor Act (EMTALA): hospitals that execute Medicare provider
agreements with the federal government must treat all human beings who enter their emergency
departments
doctor could not transfer woman in birth before he stabilized her hypertension because the transfer benefits did
not outweigh the risks
patient dumping still occurs, though
for purposes of EMTALA, patients have reached the emergency room once they reach any hospital property,
including ambulances
4. Nondiscrimination
United States v. University Hospital (p.98):
federal statute forbids treatment based on discrimination
where the handicapping conditions is related to the conditi
request of the treating doctor does not owe a duty to the patient
Lyons v. Grether (p.115):
an appointment with a doctor is insufficient to create a relationship
consulting doctors are more likely to form a relationship when they’re on call
no relationship is formed when the doctor examines the patient at the request of a third party
doctors owe a duty of non-negligence to third parties, though some states only find a duty when there is a special
relationship between the third party and either the patient or doctor
Tunkl v. Regents of the University of California (p.121):
no difference of duty of due care between paying and non-paying patient
hospital’s consent agreement, required upon entrance and releasing it from all liability, was a contract of
adhesion
-hospital had superior bargaining power
waivers are enforced when:
1. patient leaves hospital against medical advice
2. patients insist on certain type of treatment, not medically recommended, due to religious or other reasons
3. patients participate in medical experiments
doctors may have conscientious objections to performing treatment
