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Medical Malpractice
University of Georgia School of Law
Cook, J. Vincent

Medical Malpractice
1. INTRODUCTION
Definition: Malpractice is a particular form of negligence which consists of not applying to the practice of medicine a reasonable degree of care and skill; that which is ordinarily exmployed by the profession generally under similar conditions. (Johnson)
a. Three Elements: Duty, Breach, Proximate Cause (Zwiren)
b. Must have a physician-patient relationship: This can be formed even when only treatment is a referral.
i. Physician’s examination for determining workers comp or disability does not create a duty (Harris).
ii. Physician asked simply to read or perform a procedure for referring physician does not necessarily become obligated to counsel the patient about matters beyond that (Clay).
c. Presumption of Due Care: Burden on one receiving to prove otherwise (Specht).
d. Proper Standard of Care must be established by the testimony of physicians (Hayes).
e. Unfavorable Results do Not Equal Malpractice: Must be negligent—no inference (Brannen).
i. Res ipsa loquitur does not apply (Oakes).
f. Hindsight may not be used in judging the doctor (Haynes)
g. Standard is not established by what a particular doctor would have done (Brannen) but witnesses may be cross-examined about their doings (Condra).
h. Standard is national, not local (Wagner).
i. Locality Rule: Hospital must exercise ordinary care to furnish equipment and facilities reasonably suited to the uses intended and such as are in general use in hospitals in the area.
i. Applicable only where plaintiff is questioning the adequacy of the available services of facilities of a hospital.
ii. General national standard applies to claims which question the professional judgment of the hospital’s employee or the training provided to that employee (Gusky).
j. Reporting: When insurance company pays out money on a claim against doctor, must be reported to Composite State Board of Medical Examiners. If it is over $100,000 or there have been at least two prior medical malpractice payouts for the physician, Board must investigate. Board must also conduct assessment of physician’s fitness if Board has disciplined same doctor three times in past ten years (OCGA 33-3-27).
k. Emergency situation: If case involves emergency, provider must be shown to be grossly negligent by clear and convincing evidence.
l. Negligence Per Se: Person harmed must fall within class the legislature intended to protect and harm suffered must be same statute was enacted to protect. Negligence per se does not automatically make the defendant liable; still needs proximate cause (Groover).
2. CAUSES OF ACTION
a. Person practicing medicine must exercise reasonable degree of care and skill (OCGA 51-1-27).
b. Misdiagnosis or Mistreatment based on error in professional judgment will hold doctor liable unless he exercised requisite degree of skill and care (Word).
c. Abandonment may lead to liability if doctor stops treating a patient at critical time without sufficient notice for patient to obtain another physician or if physician fails to provide patients with qualified substitute (Pritchard).
d. Death: recovery may be had for full value of life without deducting for expenses of decedent had he lived.
e. No loss of chance in GA
f. Wrongful death can consist of accelerated death if there is active negligence (Pruette).
g. If failed to provide treatment that could have extended the life, no wrongful death claim (Dowling).
h. Decedent’s estate may recover for funeral, burial, pain and suffering, lost wages, and medical bills from malpractice until death.
i. No recovery for wrongful birth in GA (Abelson).
j. Wrongful pregnancy: failure to properly perform sterilization or an abortion procedure may allow recovery for pain and suffering, cost of medical complications related to discovery, lost wages, and consortium. No recovery for raising the child (Graves).
k. Sterilization: physician must give full and reasonable medical explanation as to meaning and consequence of the operation and the physician has no liability unless it is negligently performed.
l. Recovery for IIED but not NIED in GA.
m. Recovery for NIED only if there is impact, which is usually physical injury (Ryckeley). Emotional damages do not always have to stem from physical injury, such as if mother sees son suffer in which both were physically impacted (Lee).
n. Plaintiff may recover from D’s negligence notwithstanding absence of physical injury but this is only recoverable If the P has suffered a pecuniary loss (payment of mental health bills) and has suffered an injury to the person, albeit not physical (Nationwide). Aggravation of mental illness recoverable.
o. Breach of Contract: undertaking of care implies that physician possesses the requisite skill and care. (Bell). B/K is actionable. Same SOL applies (Knight).
p. Breach of Fiduciary Duty: patient who undergoes procedure based on inaccurate info from physician

4. MED MAL CONSENT TO TREAT
a. Basic Consent
i. Every human being has a right to determine what shall be done with his own body—Cardoza, operation without consent is assault (Schloendorff).
ii. Patient has right to refuse treatment in absence of conflicting state interest (In RE LHR).
iii. Cause of action for battery exists when objected-to treatment is performed without consent or after withdrawal of consent. (OCGA 51-1-13).
iv. If consent given, flows to all medical personnel involved in performance of surgery under physician’s direct supervision and control (Gillis).
v. If one consents to treatment, negligent touching in that course will not constitute battery (Morton).
vi. Basic consent will fail if obtained by artifice (Albany Urology Clinic).
vii. Consent form signed applies only to current operation, not to follow-up to correct problems (Joiner).
viii. Consent to general course of treatment does not preclude action for battery for treatment actually undertaken (Johnson). Doctor may claim that further procedure was medically necessary, but this must be contradicted by expert testimony (Long).
ix. Exceptional circumstances are a question of fact (Joiner).
x. Consent not always needed—inmate with impairment deemed consented when it was grave emergency (Simon).
xi. Consent form’s terms are construed against physician (Harris).
b. Informed Consent
i. Doctor need only volunteer this, from OCGA 31-9-6.1
1. Diagnosis of condition requiring the procedure
2. Nature and purpose of such proposed procedure
3. Material risks generally recognized and accepted by reasonably prudent physicians which could reasonably be expected to cause a prudent person to decline treatment
4. Likelihood of success
5. Practical alternatives that are reasonably recognized and accepted
6. Prognosis of condition if the procedure is rejected
ii. Lack of informed consent is element of negligence, not separate cause of action.