Law and Medicine – Spring 2010
1. Introduction
a. Quality in Health Care
i. Defining Nature of Quality
ii. Assessing Quality
b. Problem of Medical Error
i. Regulatory Responses to Medical Risks
2. The Professional-Patient Relationship
a. Contractual Relationship
i. Once established, law will impose obligations above those that come with the K
1. Malpractice claims come from the legal obligations
ii. Usually Implied K is basis of the relationship btwn P and P
1. Walks into office (offer), doctor accepts the K by examining the patient (acceptance); Free to reject the offer and send patient away (relieves herself of any duty to that patient)
b. Esquivel v. Watters
i. Existence of a P-P relationship is crucial to the recognition of legal duty
c. The K btwn P-P
i. May expressly K with a patient for a specific result
ii. Once P-P relationship is created – Phys are under an obligation of continuing attention
1. Refusal to treat a patient is abandonment; may be malpractice
iii. Termination
1. Obligations end if the phys can do nothing more for phys
2. PP relationship also an be ended by
a. Mutual consent of the parties;
b. Phy’s withdrawal after rsble notice;
i. If b/f a cure is achieved or patient is transferred to the care of another: phys may be liable for abandonment
ii. To avoid liability, phys must give patient time to find alternative care
c. The dismissal of the phy by the patient; or
d. The cessation of the necessary that gave rise to the relationship
d. Phys in Institutions
i. Must provide health care w/in limits of the health plan coverage or their employment K’s with the institution
ii. Millard v. Corrado
1. General Negligence
a. In most cases of Medical negligence or malpractice
i. Phys duty to a patient is derived from PP relationship
b. When phys’ allegedly negligent acts or omissions do not involve a matter of medical science
i. A duty may exist when public policy favors the recognition of a duty; or
ii. When the harm is particularly forseeable
2. Public Policy
a. Factors whether to recognize a legal duty based on public policy
i. Social consensus that the interest is worth protecting
1. Foreseeability of harm and degree of certainty that the protected person suffered the injury
2. Moral blame society attaches to the conduct
3. Prevention of future harm
4. Consideration of cost and ability to spread the risk of loss
5. Economic burden upon the actor & the community
b. Emergency Room Situations
i. Phys on call to treat emergency patients are under a duty to treat patients
ii. On-call phys owes a duty to forseeable emergency room patients to provide rsble notice to hospital personnel when he will not be able to respond to calls
1. Duty exists independent of any PP relationship
iii. Phy who has staff privileges at a hosp also agrees to abide by hosp bylaws and policies – and has therefore agreed to a PP relationship w/ whomever comes into the hosp (most)
e. Specific Promises and Warranties of Cure
i. Mills v. Pate: Breach of Express Warranty Claim
1. Cannot be a recast of another cause of action (i.e. negligence claim)
a. If claim is based on phy’s breach of the accepted SOC, cause of action is an attempt to recast malpractice claim
1. Physician guaranteed a particular result; and
2. The claim did not require a determination of whether a phy failed to meet the standard of medical care
f. Contract Claims
i. May have advantages for ∏
ii. Ways to breach a K btwn PP
1. Phys may promise to use a certain procedure and then use an alternative procedure
2. Breach of express warranty – rare against health care providers
g. Exculpatory Clauses
1. Tunkl v. Regents of Univ of Cali:
2. Exculpatory clause which affects the public interest cannot stand
a. Factors to determine if public interest
i. Concerns a business of a type generally thought suitable for public regulation
ii. Performs a service of great importance to the public (often a matter of practical necessity for some members of the public)
iii. Willing to perform this service for any member of the public who seeks it, or at least for any member coming w/in certain established standards
iv. B/c of essential nature, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks the services
v. Party confronts the public w/ a standardized adhesion K of exculpation and makes no provision whereby a purchaser may pay add’l rsble fees and obtain protection against negligence
vi. As a result of the transaction, person/property of the purchaser is placed und
costs are limited by keeping more cases away from jury
3. Scope of the disclosure the Phy is legally obliged to make
a. Canterbury
i. Scope must be measured to allow PA enough information needed to make an informed decision
b. Other courts
i. Measured disclosure by “good medical practice”; or
ii. Measured by what a reasonable practitioner would have disclosed under the circumstances; or
iii. What medical custom in the community would demand
b. Disclosure of Phy – Specific Risk info
1. When disclosure of risks and alternatives material to a PA’s decision
2. Not always required to disclose comparative risk evidence in statistical terms — Case by case basis
a. Here: Morbidity and mortality outcomes of diff physicians material b/c it evidenced the proposed treatment’s greater risk
c. Disclosure of Statistical Mortality Information
1. Didn’t impose any requirement that a phy disclose to his PA his life expectancy
d. Disclosure of phy conflicts of interest
i. Moore v. Regents of the Univ of Cali (again)
1. Phy must disclose personal interests unrelated to the PA’s health, whether research or economic, that may affect the phy’s professional judgment
a. Failure to disclose may give rise to a COA for performing medical procedures w/out informed consent or breach of fiduciary duty
2. Rsble PA would want to know whether a phy has an economic interest that might affect the phy’s professional judgment
ii. Disclosure of new or innovative approaches for a PA’s problems
1. When phy offers an experimental procedure or treatment to a PA, they have:
a. A duty, in exercising rsble care under the circumstances
b. To inform the PA of the;
c. Experimental nature of the proposed procedure
d. Equally has a duty to inform PA of any uncertainty regarding the risks associated w/ experimental procedures – known or projected most likely risks
