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Law and Medicine
Villanova University School of Law
Wertheimer, Ellen

Law and Medicine Outline
Prof. Wertheimer, Spring 2008
–physician liability, straightforward torts
–dr-patient relationship
–institutional liability – suing hospitals and HMO’s
–medical malpractice (insurance) crisis
–HMO’s tend to be the villain, not dr’s
–access to healthcare issues
–ERISA – evil law acc. to prof
–reproduction and birth
–genetic issues
–life and death decisions
–experimentation w/ humans
–allocation of scarce resources like organs for transplant—scarce but nec!!
àStrict Liability – almost never used against dr. or hospital; only used w/ products liability; what hospital is providing is not a product; it’s providing a service even though there’s use of products to give service
–can use S/L w/ cases like needle breaking in dental patient’s mouth or breast implants or using thorotrast w/ x-rays; court tries to see if transaction looks like a sale in deciding whether to use S/L
Judicial Risk-Benefit Balancing:
Helling v. Carey – even though it was custom for dr’s to give pressure test for glaucoma only to patients over 40, court said risk of it outweighs benefit of not giving test so
à**court rejected std. of care of profession in favor of its own cost-benefit analysis
è**Custom may not match the reasonable std. of care
èTheories other than Malpractice p. 177
1) Negligent Infliction of Emotional Distress
Campbell v. Delbridge:
–J’sW got blood transfusion against his consent
–Main issue = whether expert testimony is needed on applicable std. of care
            –here, not nec. b/c lay opinion would suffice; issue is not abt std. of care
àissue = just if dr. violated patient’s consent; don’t need expert for this
                        –jury is perfectly capable of deciding whether there was negligence
–Problem in this kind of case = no physical harm caused here; no injury
–many of these cases are brought as battery cases b/c there was no consent to contact w/ blood; plus, patient didn’t die so jury will have hard time seeing there was an injury especially when pl. survived b/c of transfusion
Oswald v. Lebran: pl. thought she was about to deliver and medical staff and dr. ignored her; baby delivered prematurely and baby put on tray; baby squeezed dad’s finger and dad realized baby was alive but it died later on
–ct said you don’t need expert testimony here! Anybody can see that std of care was violated!!
            –intentional infliction of emotional distress case, not negligent infliction
à Intentional and Negl. Infliction of Emotional Distress
–mostly, never need expert testimony here b/c facts/tort is so horrible, it’s obvious there was emotional distress
–Claim for emotional distress if you find out your Dr. had AIDS – not a claim unless you show you were harmed; remote possibility of harm not a claim
2) Duty to Contest Reimbursement Limit
Wickline:  Dr. didn’t request an extension on hospital stay that was cut short by MediCal that was trying to cut its costs
–          problem in case – Dr. is in complete catch-22 b/c he must argue that 1) it was reasonable to discharge her in 4 days b/c he signed discharge order. Must show it was not negl to discharge her when she was discharged. à and if he was reasonable to discharge her in 4 days, then it was also reasonable for MediCal to approve 4 days.
–          All agree that pl’s 3 treating dr’s were responsible for deciding course of treatment, not ins co.
–          If ins co denies extension and refuses to pay, and patient refuses to pay, who will then pay for extension? Hospital must eat cost to extend stay and not be negligent
–          à Very important!! à ***Can sue HMO if it affects medical outcome of case
HMO’s save money on premiums if their gatekeeper dr’s don’t use referral services; don’t refer patients to other dr’s and dr’s get more $ from more premiums too
è Defenses to a Malpractice Suit:
–3 defenses are stupid; question is not if there is alternative choice of treatment but if treatment chosen is REASONABLE!
Chumbler: Pl. failed to show negl w/ fact that only 1 out 9 dr’s use estrogen which his dr. gave him and that it’s not reasonable; showing 1 out of 9 is not enough; must also show a reasonable dr. would not give this treatment
Henderson:  problem w/ breast implants – dr. intentionally slit it for silicon to come out – so obviously negligent today!! Dr. won! b/c pl. failed to prove that this was an unreasonable treatment at time of surgery.
à Defense of “respectable minority” rejected by ct. = dr. not negl if “respectable minority” of other dr’s adhere to treatment at issue
èif defending medical error, just show whether that mistake was reasonable; if other reas. dr’s would’ve made same mistake, then ok
–If dr. tries a new treatment, atty can say “so you were ‘experimenting’ on that patient?”
–2 kinds of experimentation:
1) therapeutic experimentation – s/t tested in ppl that’s supposed to make them better
2) non-therapeutic – testing in ppl who don’t have any illness
àLots of strict regulation over experimentation
B. Clinical Innovation
Brook v. Mem. Hospital: –dr. was being innovative w/ a problem for which there was no solution. àask, would a reasonable dr. have done this in the same circumstances?? Don’t call it experimentation; would a reas. dr. also do such an experiment?
–experiment = do it to further human knowl; but here, it was to help girl – therapeutic
–does dr. have to tell patient it is experimental? Yes!
èStd. for innovative practice is still whether reasonable dr. w/ try it
Karp v. Cooley –Dr. Cooley tried artificial calf heart in patient Karp but he died. Lots of issues…informed consent, arg that Karp was not told proced. Was an “experiment.” Arg was that pl. has to prove that a reasonable dr. would not have used artificial heart. Only expert on this was Dr. DeBakey who testified that I don’t know a/t abt Dr. C’s artificial heart; I only know about my own which would not have been ready. So ct said that he was not qualified on expert on Dr. C’s heart. 
–if you’re absolutely certain to die, and there’s a procedure that might work, you might say yes to it…ct didn’t see proced as experimental b/c saw it as therapeutic
[wrong to say that experimental proced can’t be therapeutic? –proced can be a therapeutic experiment
**Clarify on experimental v. therapeutic
àGood Samar

pl. should’ve known she was injured the day dr. misdiagnosed her. How the heck can she know dr. was wrong!!!
àMultiple Defendants
–your liability matches the amount you contributed to injury = several liability instead of joint and several
àDamage Innovations: “Loss of Chance” Doctrine
–39% chance of survival w/out negl – 25% survival after negl. = 14% chance of life lost
–under conventional tort suit, this pl. would lose under preponderance of evid std. that by more than 50%, he lost chance to live
–court doesn’t want to release negligent dr’s just b/c their negligence was less than 50% chance that their actions caused injury and point of torts is to deter negl. conduct
–pl’s were damaged and would not be compensated at all under prep. Of evid std.
–pl’s award would be 14% of chance of life lost
–if chance of life lost was greater than 50% negl of dr, then dr. would have to pay full 100% of dam under loss of chance – Not fair to dr’s
Punitive Damages – rare in malpractice except like in obnoxious cases like Oswald or in abandonment cases where dr. refuses to see patient; in abandonment cases, issue can be was there dr-patient rel to begin w/? if not, dr’s refusal is not abandonment
è**All tort suits are based on dr.-patient rel. [creates duty]; need this rel. to sue in torts
–can also sue for breach of K, but these causes of action are rare
àClaims Based on Contract Theory:
Dingle v. Belin: pl. said that dr. agreed to do cutting in her surgery but he didn’t; resident did cutting and cut wrong duct.
àhuge advantage of breach of K suit = there’s strict liability for breach of K, not negl std. All you have to ask is was there breach? Yes or no? 
–but damages under K theory are harder to show – go by reliance or expectation? To get exp dam, must show that if dr. had done surgery, there would’ve have been no error – very easy to argue b/c dr. won’t argue that if I would’ve done surgery, I would’ve cut duct too.
–problem w/ K argument: pl’s arg has credibility b/c she works in hospital and knows that residents would be operating; but problem is that pl’s arg of dr’s promise is impossible b/c dr. would never agree to having 2 ppl do surgery b/c 3 ppl are req’d
–jury agreed w/ def b/c of impossibility of dr’s promise acc to pl.
–“ghost surgery” – regardless of K claim, if there was negl on resident’s part, can argue negligent supervision that dr. didn’t carefully supervise resident so surgeon is responsible anyway – pl. will have to prove that resident was negl. to cut bile duct even w/ K claim??