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Law and Medicine
University of Mississippi School of Law
Pittman, Larry J.

Law and Medicine
Pittman – Spring 2006
Pages 1-64
            -first 2 classes
Ch 4-all
Ch 5-informed consent
Ch 6-
Ch 7-only parts
Ch 8-all
Ch 9-managed care
Ch 10-ERISA statute
Ch 11, 12, 13, 14, 15-not covered
Ch 16-possibly
Ch 18, 19
(Chapter 1)          Introduction to Health Law and Policy   (Ch 1, pages 1-64)
(A)  Defining illness
-can have very different definitions depending on the specific language of, for example,
 the insurance policy being considered
(B)  Quality of healthcare
-basic principle of health law
Defining quality
-quality-by looking at things including cost, benefits to the patient, risks of the procedure,
             resources available, values the patient holds-providing the best treatment to                        maximize these factors
            -the extent to which the care provided is expected to achieve the more favorable                  balance of risks and benefits
            -the degree to which health services for individuals and populations increase the                  likelihood of desired health outcomes and are consistent with current medical                    knowledge
            -can also judge by looking at the particular distribution of benefits within a                          population
-factors to look at: (important)
            (1)-process-the doctors, nurses, and any other committees the care center has in                    place to look at the patient
            (2)-structure-the physical aspects of the care center, equipment present,                                 technology present
                        -the relatively stable aspects of care, of the tools and resources they have                             at their disposal, and of the physical and organizational settings in which                             they work
            (3)-outcome-what the ending condition of the patient is, benefits
                        -a change in a patient’s current and future health status that can be                                       attributed to antecedent health care
(1) Improving quality of process
-two ways to improve quality:
            -through tort suits
            -practice quality control methods, system wide checks
Tort suits
-as to above factors-arguably one way to improve process is through law suits, forcing
 the people involved to be accountable for their actions
System-wide checks
-others say that the best way to improve quality is to have system-wide checks
-put procedures in place in order to help prevent problems before they start
-want to encourage doctors to voluntarily come forward when they make mistakes
            -but this is unlikely for fear of being sued
-put more standards in place
-require more continued education, conferences, reading or more medical journals
-require reporting and sanction if you do not
(2)   Improving quality of structure
-where can the hospitals get more money?
(3)   Improving outcome
-look at how long someone is kept in hospital
-requiring report cards for each hospital
-comparing the “grades” can help people to choose their hospital and eventually force the
 hospital to better itself
(C)  Medical Error
-there are a substantial amount of medical errors being committed by institutions
-people are being injured and even dying form these errors
-errors can be plain errors or errors as a result of negligence
-many errors go unreported or uncompensated
            -ex: eight times the amount or errors occur in NY as the number of law suits filed
-according to this, we should actually have more (legitimate) suits, more money paid to
 patients form hospitals and insurance companies
Things to keep in mind about errors
-need to keep in mind, however, that medicine is not actually an exact science, still a
 large amount of care depends on opinion of doctor
-many times, there are options as to what condition the patient has
-patients may not have given appropriate medical history
-patients may lie to doctors
-even for the same patient, different doctors may give different diagnoses
-sometimes, there is not one “best” treatment, patient needs to look at what is best for    
            -best for one person is not always best for the next
            -sometimes the process of treatment is trial and error
-sometimes less care is actually better than more care
            -people can die from complications of un-needed procedures
-some care is not related to life or death, or serious pain and suffering
            -some is just to improve the quality of life
-there are different ways to measure some aspects of medicine
            -ex: inpatient days or doctors office visits
-newest, most innovative care is not always the best
-just bc an error is involved does not mean that negligence was involved
JCAHO-Joint Commission on the Accreditation of Healthcare Organizations
-org. that is responsible for accrediting hospitals
-requires health orgs. to report errors to it AND to patients
-also requires reporting of sentinel events-substantial medical errors
            -an unexpected occurrence involving death or severe physical or psychological                     injury, or the risk thereof
-failure to report can result in loss of accreditation
CMS-Centers for Medicare and Medicaid Services
-requires hospitals to develop a quality assessment and performance improvement
-hospital must maintain quality of care at “acceptable” level
*For doctors, there is a national data bank of malpractice claims, very bad to get sued
(Chapter 4)          Liability of Health Care Professionals     (Ch 4)
(A)   Medical Malpractice-legal fault by a physician or surgeon
-it arises from the failure of a physician to provide the quality of care required by law
-when a physician takes on a patient, he takes on an obligation enforceable at law to use
 minimally sound medical judgment and render minimally competent medical care in the
 course of the service he provides
-a competent physician is not liable per se for a mere error in judgment, mistaken
 diagnosis or the occurrence of an undesirable result
Twin principles
-reason and fairness should always be used when looking at medical malpractice actions
Hall v Hilbun-common questions/procedures to go through for malpractice
Duty? Did they practice same knowledge, training, skill, and diligence (knowledge aspect) and did they use it and were the resources available 
Breach? Did malpractice occur?
When can malpractice occur?
            -referral stage
            -termination of treatment
            -negligence in lack of advocacy for payment through other sources
(B)   The Standard of Care
Locality rule
-rationale-doctors in small areas have less training than big city doctors-have less 
-the doctor is held to the standard of care of the particular locality
-lower standard-attempts to draw doctors to smaller areas by lowering the standard they
 must meet and therefore lowering the amount of liability
Hall v Hilbun-1985MS case, establishing the standard of care
-locality rule-largely done away with
-nationalization of medical education and training-medical schools, training, curricula,
 residency, etc. are typically and generally equal across the country now-different from
 the past
Similar locality rule
-using a similar location, not necessarily the same location though
National standard
            -knowledge-same type of training, internships, seminars-opportunity of continued               education, board certification (similar to competence based standard below)
            -resources-but also take into consideration the resources the doctor has
-trend now-most states follow the national standard
Competence based standard of care
-each physician may with reason and fairness be expected to possess or have reasonable
 access to such medical knowledge as is commonly possessed or reasonably available to
 minimally competent physicians in the same specialty or general field of practice
 throughout the US, to have a realistic understanding of the limitations of his knowledge
 or competence, and to exercise minimally adequate medical judgment
-each physician also has a duty to have a practical working knowledge of the facilities,
 equipment, resources (including personnel), and options (including what services are
 reasonably available in nearby larger communities) reasonably available to him as well
 as the practical limitations on the same
Resource based standard of care (general statement of MS standard)  
-given the circumstances of each patient, each physician has a duty to use his or her
 knowledge and therewith treat through maximum reasonable medical recovery, each
 patient, with such reasonable diligence, skill, competence and prudence, …as a
 minimally competent physician in the same specialty or general field of practice
 throughout the US, who has available to him the same general facilities,
 services, equipment, and options
-typically courts give deference to medical profession’s own standards of care
-but what if standard is just habit that has continued and not actually the best way to do something?
Codified standards of care
-clinical guidelines-the Institute of Medicine has defined clinical guidelines as
 systematically developed statements to assist practitioner and patient decisions about
 appropriate health care for specific clinical circs
-per se violations?
Duty of Care   (from MS case) (pretty much same as standard of care above)  
-The content of the duty of care must be objectively determined by reference to the
 availability of medical and practical knowledge which would be brought to bear in the
 treatment of like or similar patients under like or similar circs by minimally competent
 physicians in the same field, given the facilities, resources, and options available
-physicians who hold themselves out as having specialized knowledge will be held to the
 standard of specialists with those same enhanced qualifications
-time factor-consideration must always be given, look at if the physician is being
 confronted with what reasonably appears to be an emergency or is there time for   
-economic factor-are the proposed transferee facilities sufficiently superior to justify the
 trouble and expense of transfer?
-has helped keep widespread physicians, even small town physicians up to date
-helped in diagnosis
-but has also made it harder for doctors to say “I didn’t know”
-good to do as much internet research as possible even before expert to know as much as
 possible yourself and be able to see what the doctor should have known
-The National Guideline Clearinghouse (, MDConsult, MEDLINE, etc.
(C)   Expert Medical Witness
-if scientific, technical, or other specialized knowledge will assist the trier of fact to
 understand the evid or to determine a fact in issue, a witness qualified as an expert by
 knowledge, skill, experience, training, or education coupled with independence and lack
 of bias, may testify thereto in the form of an opinion or otherwise (FRE 702)
-where expert lives or practices has no relevance per se
-abolition of locality rule has helped by broadening possible expert witness pool
            -very hard to find doctor in same state to testify against another doctor
*must testify to a reasonable degree of medical certainty that it is more likely than not 
 that the doctor’s error caused the patients problem/death/injury etc.
-can not just say that “this is what I would have done….”
*even after the witness has been qualified-he must also be familiar with the particular
 resources of the doctor in order to formulate an opinion (resource based prong of
 national standard)
-expert need not be board certified as long as he has the required expertise, education, etc.
            -but board certification adds weight and is better to try to get these
-need not possess an actual medical degree as long as he has the knowledge
-normally must be in the same specialty as def
-opinion must be reliable testimony
-based upon scientific knowledge
            -subject to peer review and publication
            -been tested
            -acceptable rate of error
            -was test performed before litigation or was it for the purpose of litigation
            -can the test be duplicated?
-based on good science
Before suit
-lawyer should make sure that the suit is well grounded in both fact and law before filing
-lawyer should examine the medical records and determine cause of action
-think about possible expert opinion
-possible Rule 11 sanctions if do not do above, also possible to be sued by own client
If no expert is used, other ways to prove case-things the expert may rely on
-clinical literature, FDA statements
-phamaceutical package inserts, instructions, and warnings-be careful, there is some 
 variation as to how much weight to give these
-judicial notice-must be very highly known
-substantive use of a learned treaty-must prove that it is a very reliable view of the
 medical practice and that this practice has been adopted by the medical professionals in
 this area
-expert reliance on research findings-also has to show that the standard is adopted in this
 particular community
Other methods to prove negligence   
-the plaintiff can have its own expert of course-but if no expert is retained:
-examination of def’s expert witness-9 out 10 cases, this will not happen
-admission by the def that he or she was negligent
-practice guidelines/clinical guides
-testimony by the plaintiff
-common knowledge in situations where a layperson could understand the negligence
-use of res ipsa loquitur-many courts don’t like to use this, Ybarra case, many times will
 only apply to injuries that occur at another location than the one being treated
            -the accident is of the kind that does not generally occur without some type of                     negligence
            -the injury was caused by an agency or instrumentality within the exclusive                          control of the def
            -injury must not have been due to any voluntary action or contribution on the part               of the plaintiff
Quality of expert
-do not need an expert that’s opinion keeps changing
-a case is only as good as the expert’s opinion
(D)   Incident reports/peer review committee reports
2 types of committees in hospitals
-(1)-risk management committee-headed by a risk management manager
            -investigates individual incidents
            -recommends actions that should be taken to avoid incident happening again
            -responsible for preparing incident report-describes incident, prepared everytime                  an incident occurs
-(2)-quality assurance committee-peer review committees
            -more about looking at rules/procedures followed by the hospital
            -operates through peer review committees
            -report contains historical failures or malpractice and recommendations
-incident reports are generally more directly relevant to a single malpractice claim than
 would general committee reports
-bc of this, courts many times find peer committee reports as not discoverable, privileged
-incident reports are most likely discoverable, relevant
            -however, can try to get around incident reports being produced by claiming they               are privileged or work-product bc they were prepared in anticipation of litigation
            -counter this though by showing that the info is not discoverable by any other                      means without substantial hardship
-always ask in interrogatories for any existing of the above documents
(E)   Judicial Risk-Benefit Balancing
-the belief that evidence that the doctor followed customary practice is not the sole test of
 professional malpractice
-an alternative to judging malpractice actions using the standard of care
-most jds have been reluctant to replace the established medical standard of care with a
 case-by-case judicial balancing
(F)   Other Theories
Strict Liability
-courts have generally resisted applying strict liability (or implied warranty) to health
 professionals or institutions
-primary thing you are getting from a doctor is a service, not a product
            -generally the doctor should not be held liable for products used
            -there is a distinction when the product is taken with you, more possibility for                      strict liability (ex: pace maker, breast implant)
-sometimes this depends of the nature/essence of the physician-patient relationship
-usually if the medical services could not have been rendered without utilizing the
 product, there can be no strict liability
-instead, for product-sue the manufacturer, retailer, etc.
Negligent infliction of emotional distress
-plaintiffs may be able to sue a health care provider for the negligent infliction of
 emotional distress under particularly egregious circumstances, even without tangible
 physical injury or impact
-cases tend to fall within one of two categories:
            -bystander rule­-allows that a member of the family witnessing an injury to a third               person may recover if they are present or suffer shock “fairly contemporaneous”                          with the accident
                        -most courts hold that the plaintiff must actually witness the events                                     causing the bad outcome not just the bad outcome itself
            -direct victim rule-you yourself were handled/treated in such a way that cause you               emotional distress
-most courts have rejected the zone of danger argument, finding that a remote possibility
 of personal peril is insufficient to place plaintiff within a zone of danger for purposes of
 a claim of negligent infliction of emotional distress
Duties to Contest Reimbursement Limits
2 types of payment reimbursement (by insurance company or gov. agency)
-prospective utilization review-determinations of whether or not payment will be given  
 occurs before treatment is given
-retrospective-determination of whether or not payment will be given occurs after the
 treatment has been given
-it is possible for a patient to sue the insurance company/HMO for negligently denying
 authorization for continued treatment
-you can sue the dr himself if you show that he was negligent in discharging the patient
-once you assume the patient, the dr has a duty to give treatment regardless of payment
-a doctor should reasonably know the reimbursement limits so that he can promptly
 advise the patient in obtaining funding that the dr believes is necessary
-a patient can sue everyone who played a part in the decision to deny authorization for
 treatment if they can show that this denial played a part in the injury
            -a dr may be guilty of malpractice by not appealing decision
            -even if no appeal, the HMO, etc. may not be able to escape liability, should have
             made the appropriate decision in the first place
Fraudulent Concealment and Spoliation of Evidence Actions
-in a few jds, courts have allowed a separate intentional tort theory to be pleaded along
 with a negligence claim where the physician has intentionally altered records to create
 misleading entries (spoliation) or has knowingly made a false misrep to a patient
 (fraudulent concealment)
Fraudulent concealment
-fraudulent concealment will toll the statute of limitations
-can also possibly take away informed consent
-the plaintiff has the burden of proving fraudulent concealment
-action requires proof that a false misrep of a material fact was made and was relied upon
 by the patient in ignorance of the true facts, and that damage resulted
-can occur before or after the treatment
-once proved, dr can be subject to punitive damages, battery charges bc there is no actual
-some jds also allow separate actions for spoliation of evidence, evidentiary charge
-spoliation of evidence may consist of altering the medical record or adding to it after an
 initial entry, deleting, substituting, or destroying x-rays, lab reports, or physical
(G) Defenses to a Malpractice Suit
Respectable Minority Defense
-recognizes that there are several different ways to treat most medical conditions and
 different doctors may prescribe to different such methods
-when 2 or more schools of thought exist among competent members of the medical
 profession concerning proper medical treatment for a given ailment, each of which is
 supported by a responsible medical authority, it is not malpractice to be among the
 minority in a given city who follow one of the accepted schools          
-as long as a respectable minority uses the method used by one such doctor, it does not
 have to be the majority view, this doctor is still able to defend his use of the method
 from malpractice action
-must be respectable in that the view is supported by responsible authority
Minority of one
-very hard to argue that one doctor who follows one vie

the relationship
            -bc of the superior amount of bargaining power, the contract is one of adhesion-                 the patient could not negotiate out of it, it is forced
            -as a result of the transaction, the patient puts himself under the control of the                      hospital and subjects himself to whatever negligence the hospital commits
-what about releases, refusals to accept treatment (blood case involving jehovah’s
            -not as much as an issue with public policy
            -can be argued that the patient assumes the risk of refusing treatment         
(C)   Tort Suits
-may be able to get emotional distress damages
-primary way of suit, this is the typical med-mal type of suit
(D) Confidentiality and Disclosure
Breaches of Confidence
-one of the most important obligations owed by a professional to a patient is the
 protection of confidences revealed by the patient to the professional
-generally described as consisting of the unconsented, unprivileged disclosure to a third
 party of nonpublic info that the def has learned by way of a confidential relationship
-imposes a duty larger than reas person to honor the trust and confidence reposed in them
 bc of the special relationship
-doctor can argue that patient had a duty to disclose himself, and courts have said that this
 bars a case of action
-normally records will be allowed into evidence as falling under the business records
 exception to the hearsay rule
Types of actions
-invasion of privacy
-invasion into seclusion-more like spying, peeping tom type stuff, harder to prove
-public disclosure of private facts-best cause of action for breach of confid
-breach of confidential relationship
-alcohol abuse/substance abuse treatment also falls under confidentiality protection
-HIPAA-creates afederal cause of action for breach of confid relationship
            -however, does not automatically give a right to sue
-No consent required-no consent is necessary to disclose info if it is in the course of
 treatment, seeking payment, carrying out health care operations, or to a person permitted
-Consent permitted-dr may obtain and patient may give consent to disclosure in other
-Consent required-authorization is required, consent is required other than above reasons
 unless required by law
-a dr is required to disclose the patient’s records to the patient (but some states say he is 
-patient is entitled to notice of what is being/is allowed to be disclosed
-you have a right to an accounting of persons who have gotten your info for the last 6
-hospital must have a person in charge of privacy
-health care providers are covered by HIPAA only if they transmit info electronically
            -most now do use some form of electronic means to transmit health info
            -may not have to be our medical records, as long as some type of info
            -not a very strict restriction at all
-all states now require reporting to state health dept
-some states have legislation permitting disclosure of test results to certain persons under
 certain circs
            -ex: spouse, child, partner when infected person refuses to tell, child
-some states permit contact tracing
-most states still do mot permit tracing of blood donors bc of infection due to need for
 donor confidentiality
Duties to protect third parties
-the obligations of health professionals normally extend only to the patients with whom
 they have a legal relationship, either under an implied or express contract
-but, physicians in some jds also have an affirmative obligation to protect third parties
 from hazards created by their patients
        ex-duty to child to warn parents of possible genetic disorder
            -duty to warn wife of aids patient
            -duty to warn neighbors/husband of polio case
-family members have been held to be foreseeable parties along with neighbors
-duty can arise from:
            -knowledge of how diseases are communicated
                        ex: genetic testing, HIV, polio case
            -when deadly illnesses or highly contagious ones are involved
                        -ex: aids, hepatitis
            -side effects of medication
                        -ex: duty to warn about driving
355-386-missed day-look at this!!!
Ø      Most courts do not allow “wrongful life” claims (if you had informed the mother, she would not have had a baby.)
Ø      Nor do most courts give “impaired life” damages to children born with genetic defects. 
Ø      Some courts will award damages to these children for expenses associated with defects caused by Dr. negligence or failure to inform the pregnant mother.
Ø      Diagnosing and informing those families with members who have contracted infectious diseases is…
Duty to warn of risks during treatment:         p. 353-55
(D) Informed Consent: The Physician’s Obligation
Methods of bringing a medmal case: battery, but physical injury is not necessary, and is now used when no consent at all is given (also applies if consent is given, and the Dr. operates on another part of the body not consented to); if the Dr. fails to warn and the pt. consents to a surgery, but an unknown risk (unknown to the patient) arises, the Dr. is liable for negligence (lack of informed consent) and not battery. Only one state recognizes a battery claim when consent has been given and a risk arises.
Ø      Benefits of battery claims: punitive damages, don’t need an expert (to testify that a dr operated on the wrong body part); don’t have to prove that, had you been informed, you would have foregone the procedure.
Ø      Cost of battery claims: SoLs with intentional torts like battery is shorter than neg’c claims, or unintentional torts. Requires that no consent was been given.
 This doctrine of informed consent serves 6 functions:
Ø      protects individual autonomy
Ø      protects the patient’s statue as a human being
Ø      avoid fraud or duress
Ø      encourage dr.s to carefully consider their decisions
Ø      foster rational decision-making by the patient, and
Ø      involve the public generally in medicine.
Informed Consent
Dr must disclose :
(1)   the diagnosis
(2)   the general nature of the contemplated procedure
(3)   the material risks involved in the procedure
(4)   the probability of success associated with the procedure
(5)   the prognosis if the procedure is not carried out
(6)   the existence of any alternatives to the procedure
Two different standards of informed consent, of duty to inform:
Ø      physician-oriented standard: rsbly prudent physician (duty to disclose those risks that a rsbl prudent dr. would disclose). A slight majority of states follow this standard.
Ø      patient-oriented standard: disclose those risks that the rsbly prudent patient would want to know (all the material risks, or risks that influence the patient’s decision)
Ø      these standards are objectively measured, and are not specific to the particular dr. or pt. in the instant case
Risks: self-determination is compromised if you leave the duty to inform up to the dr. Conversely, you risk patients making decisions regarding their health without the ability to understand fully the info they have been given regarding their procedure.
Emergency situations create an exigent circumstance that overcomes the need for informed consent; emergencies denote rapidly deteriorating health.
n. 1      p. 365
Four arguments for the professional/physician oriented standard:
Ø      protects good medical practice
Ø      patient-standard would force dr.s to spend unnecessary time discussing every possible risk w/ their patient, interfering with their professional judgment on the best form of treatment
Ø      only physicians can accurately evaluate the psychological and other impact that risk would hve on particular patients
Ø      malpractice costs are ltd. by keeping more cases away from the jury; keeping the # of informed consent cases low helps keep costs down
n. 5     p. 368
Mental state of patient: Personal relationship with Dr. interferes with her ability to give informed consent; she will not question the Dr’s judgment. She is incompetent in this situation.
Johnson v. Kokemoor, 1996               p. 369
Different types of risk that the ct held the dr. had a duty to disclose (within the material risk category):
Ø      physician standard: 
Ø      patient standard: 
Things to disclose: another, better equipped facility, a better, more experienced Dr., morbidity and mortality