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Health Care Torts
West Virginia University School of Law
Price, Sandra A.

Health Care Torts Outline
Defining and Evaluating Health Care                                                  *
What is Health and Illness
Health – World Health Organization– A state of complete physical, mental and social well-being and not merely the absence of disease or infirmity (impossibly high standard)
Illness – A reasonable serious disease with incapacitating effects that make it undesirable.
Removes you from social and individual responsibility.
When one of the bodily functions is impaired – deviation from normal.
Health Insurance
·         Medically Necessary — Most health ins comp pay for things “medically necessary.”
o   Infertility – Is it medically necessary to be able to have kids?
o   Liver transplant – alcoholic must be clean for 6 months.
o   Where do you draw the line? – If it helps cure the patient, I would say that it is medically necessary.
·         Medicaid – state system for people who can’t afford medical bills.
·         Medicare – federal system that pays 50% of healthcare in US.
·         Katskee v. Blue Cross (Neb 1994) – Health insurance covered surgery for an “illness” syndrome that made it 50% more likely a lady would get cancer.
Myths of Medical Care
·         1 – Doctors should be able to figure out everything.
·         2 – Every medical condition has a “best” treatment.
·         3 – Medicine is an exact science
o   Truth – It is really an art.
·         4 – Medical care is a standard product that should be described in terms of days in the hospital or doctor visits.
·         5 – Much of medical care is a matter of life and death or serious pain and disability.
o   Truth – Medical issues are about quality/quantity of life.
·         6 – More medical care is better than less care.
Definition of Quality
·         Institute of Medicine – Degree to which health services for individuals and population increase likelihood of desired health outcomes and are consistent with current professional knowledge.
o   Consistent with good practice.
o    Increases likelihood of a good outcome.
·         Legal Definition – Did health care provider do what the majority of health care providers do to meet the standard of care to treat the illness or disease?
·         Quality Health Care – Balance between what is available/good and what is cost effective.
Roles of Healthcare
·         Educate the patient.
·         Provide quality care efficiently and continuously.
How to Assess Quality in Healthcare (need all three factors)
1)      Process – technical and interpersonal management of the illness, what provider does
2)      Structure – equipment, personnel, facilities
3)      Outcome – change in patient’s health status as the result of care given
o   Completely getting better isn’t always possible (i.e. cancer)
o   Good outcome may have different definitions (survival, quality of life, quantity of life, dying pain free, providing best outcome for $ spent)
o   Who should define “good outcome”? Dr.? Patient? HMO? Family?
3 Trends in Modern Healthcare
1 – Managed Care is increasing nationally, trend from fee-for-service to managed care
2 – Trend from solo practitioners to group practices
3 – Trend from small community hospitals to large hospital systems (specialists at different hospitals who move about)
Policy behind these trends
o   More access in smaller communities
o   More opinions for each patient
o   More opportunities for miscommunication
o   Less access to ‘your’ doctor
o   Better funding
o   More specialization, better quality
Conflicts of Interest
·         There are always conflicts of interests in the field b/c doctors get paid sometimes based on procedures.
o   Fee for service…Manage Care…Patients are concerned with costs
Controlling Costs
·         It is best to give physicians incentives to control costs, b/c they control the care and decide the best and most efficient treatment.
o   Patient – Co-pay helps to control costs b/c they only come when they need it.
o   Physicians – incentive to be cost-effective.
West Virginia Health Care Decisions Act
This is how you get informed consent.
Physician isnt obligated to provide care if they do not think it is the patient’s best interest.
Concerns of W.Va. Gov. Manchin
Screenings for uninsured kids before and during school.
Drug addition problems
Educating 1,000 more providers by 2010 b/c of aging population.
WV RX (Feb.1) – Uninsured get access to medication donated by manufacturers.
Errors in Medicine                                                                                  *
Iatrogenic Event – Injury caused by health care provider
Can be negligence or a side effect (i.e. hair loss from chemo-therapy)
Four Kinds of Medical Errors
1 – Recklessness – Doctor messes up on purpose or just b/c they didn’t care. (Liability attaches)
2 – Negligence – Doctor is tired and just messes up (Liability attaches)
3 – Patient Variation – Patient is abnormal and their anatomy caused the error (No liability).
4 – Harm from Appropriate Treatment – Side effects (Not likely liable)
Punishing Providers? Compensating Patients?
·         Prof. Price believes we should not punish providers for errors, and that we should just compensate those who are injured.
·         We need to focus on preventing errors.
·         How to compensate patients without punishing providers
o   WV has Patient compensation fund for HC providers who don’t have insurance.
o   Limit Punitives
o   Make malpractice insurance less profit driven
o   WV caps non-economic damages (pain and suffering), but not compensatory.
Effectiveness of Med Mal/Tort System at improving healthcare
Many claims are not brought b/c of cap on non-economic damages.
B/C of Med Mal, doctors will order more tests to cover their butts. This drives up costs.
Med Mal doesn’t weed out the bad doctors who are independently wealthy.
Before 2003 in Med Mal cases you could file it and wait 9 months before having to submit an expert opinion. Now you have to do all of this before filing.
Other Possible Systems other than Med Mal
o   Workers Comp (no fault system),
o   Enterprise Liability (shifts tort from doctor to facility where he practices)
o   More Confidentiality (doctors will report more and will learn from mistakes)
o   Early Intervention Mediation (before suit is filed, you give notice and supply an expert opinion, then provider has 30 days to decide if they want to try to mediate the case).
Journal Studies on Medical Misadventures
·         Harvard Medical Report
o   Most do not file suit…Not everyone who files gets money…Many BS cases.
o   Teaching hospitals (like WVU) have more adverse events, but less negligent events.
§ Why – Patients are often sicker and they experiment more. Plus students help.
o   Risk increases with age, but not between genders.
o   Most cases did not have an error.
·         New England Journal of Medicine
o   37% of claims are frivolous
o   For every $1 spent on claims – 54 cents goes to litigation and 46 cents compensates the patient for injury.
o   Most cases that go to trial are won by the defense – (4 out of 5)
o   Litigation costs tons of money.
Standard of Care
Standard – What would a reasonably prudent healthcare provider have done under the same or similar circumstances?
Expert Witness – An expert witness will testify whether the standard of care was met.
Battle of the Experts – Question of who makes the most sense to the jury.
Pros and Cons of Healthcare Providers setting the standard of care
Pros – The providers know

ors that Limit Access to Healthcare
·         Lack of money or insurance. Or Insurance might be limited.
o   Lack of ability to pay – results in less care and 25% likelihood of an early death.
·         Location, especially rural areas…and lack of public transportation.
·         Education level, ability to identify when healthcare is needed.
·         Discrimination based on gender, race, or illness, these are illegal but they still happen
·         Social isolation – patients that don’t have a support system so they’re unwilling to ask others for help to get them to a doctor.
·         Religious and other Cultural practices.
Laws to Protect Access
·         Federally Mandated Insurance Coverage Laws
o   Births – Fed law requires insurance co’s cover 48 hours of hospital stay for births.
o   Breast reconstruction from cancer – Fed law requires insurance co to pay for cancer surgery and breast reproduction.
o   Mental Health – Fed law requires mental health coverage.
·         State Mandated Insurance Coverage Laws
o   WV – Breast reconstruction from cancer (mastectomy)
o   WV – Reconstructive surgery caused by family violence.
o   WV – Pap smeer
o   WV – OB GYN access cannot be restricted by a PCP referral requirement.
§ Women can choose their primary care physician and OB GYN without a referral.
§ WV Code 33-42-4 – Women’s Access to Health Care Act.
o   WV – Out of area service is covered for emergency care.
Duty to Provide Care
·         General National Rule – The Dr.-Patient relationship is voluntary and contractual, both parties must agree for K to be formed. But once you start, you can’t stop (with exceptions).
o   Doctor does not have to accept any patient who cannot pay
§ (even in a state of emergency, Childs v. Weis case – with exceptions).
o   As long as there is not K (can be implied K) there’s no duty of care owed
o   Legal duties are less than moral duties.
o   Third party contracts — Contracts with third parties (like Managed Care) might trigger an agreement and a duty between doctor/patient
o   Receptionists – Make sure to tell receptionists not to give medical advice over the phone, b/c it might trigger a duty to care where there otherwise was not one.
·         WV Rule – It is a contractual agreement – no obligation to provide healthcare until Doctor/Patient agree on terms. Provider can terminate as long as they do it properly.
o   Exceptions
§ Emergency Condition – If provider gets federal funds, it must provide emgy care.
§ Discriminatory reasons – Doctor cannot refuse to care b/c of discrimination.
·         Exceptions to National Rule
o   Civil Rights, ADA – dr.’s cannot discriminate
o   Medicare and Medicaid minimum requirements
o   EMTALA – Emergency situations.
o   Other state and fed. laws that protect access for specific procedures/treatments
·         Reasons Dr. may refuse to form relationship
o   Discrimination – Can’t do this
o   Outside area of expertise
o   Malpractice premiums too high, terminating practice
o   Too many patients, practice closed