Select Page

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

Health care torts outline
Spring 2010
· Access is a key concept. Without access, not much else matters.

· Other topics to be discussed:
o Patient safety.
o Changes in quality of care.
o Advertising.
o Attorneys role in addressing quality of healthcare
o Medical negligence
§ How to recognize medical negligence
§ Informed consent.
§ HIPAA (Health Insurance Portability And Accountability Act)
§ Confidentiality
· What are top five health care issues in west virginia?
1. Access.
2. Cost.
3. Aging population — patient demographics.
4. Healthcare staff shortages.
5. Lack of medical insurance
· Choice of treatment for same illness often depends on perspective:
§ Surgeon operates
§ Oncologist uses chemotherapy
§ Family practitioner may choose observation
· “Best treatment” often not data or outcome driven:
o Physician may be inclined towards new or technologic advances
o “tried-and-true”
o physicians desire to have their patients do well
o professional success, etc.
· Patients have a greater ability to adapt to decreased quality of life than caregivers and third parties perceive.
o Chicago “support” study showed that physicians provide more care for patients than they would provide for themselves and probably more care that patients want.
o Many patients prefer comfortable death at home with family to ICU death.
· Costs makes a difference.
o Greater 50% of us health care is paid for by third parties.
o Fee-for-service: itemized bill of costs of service
o Managed care: pre-contracted, fixed-price for services, e.g. Medicare
o fee-for-service and managed-care approaches have “conflict of interest”
Ø Fee-for-service over test and over treat. The more you do more you paid
Ø Managed-care provide incentives to under test it under treat to increase profit.
· Assessing quality:
o Work backward from patient’s condition.
o Bad outcomes do not = bad quality.
o No injury does not = no negligence
o Issues of concern:
Ø Severity of injury
Ø Reliability of facts
Ø Reliability witnesses
Ø Jury selection
Legal definition: prudent/reasonable under the circumstances. Acceptable medical care is not the best medical care.

· WHO constitution definition of health: “a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity.”
1. “governments have a responsibility for the health of their peoples, which can be filled only by the provision of adequate health and social measures.”
· More limited definition of health: “the performance by each part of the body of its natural function.”
· Disease may be defined as: malfunction or deviation from natural function.
· Illness socially constructed deviance, subset of disease
1. A reasonably serious disease with effects that are
a) Incapacitating
b) Undesirable
2. To call a disease an illness is to view its owner as
a) Deserving of special treatment and
b) Subject to diminished moral accountability
According to this definition, an alcoholic is sick, but a drunkard is not.
· Ramifications of illness:
o Relieves individual responsibility
o Loss of control for individual; physician may help to restore control by providing explanation for illness
o Illness resulting cost the patient in terms of time and money
o Illness results in profit to someone for treating patient
o Defining condition is illness rather than natural condition, has significant economic effects
o Society may feel a special obligation to pay for medical expenses
· Physicians have the right and ability to label someone ill, i.e. To determine:
o whether a patient is culpable or not
o Disabled are malingering.
· Illness enjoins the physician to act to restore the patient to help

Katskee v. BCBS of Nebraska 1994 p.3 DEFINING ILLNESS
Proc Hx:
· Katskee sued

sonal is the management of the social and psychological interaction between client and practitioner
§ What constitutes “goodness” is difficult to summarize. Care should maximize patient welfare
o “amenities” are properties of the more intimate aspects of the setting in which care is provided
· “quality of care is the degree to which health services for individuals and populations increase the likelihood of desired health outcomes and are consistent with current professional knowledge.”

· Compared to Australia, Canada, Germany, New Zealand, and the United Kingdom, the United States is last with regard to
o Access
o patient safety
o efficiency and
o equity.
· The most notable difference between the us and the countries listed above is the absence of universal health insurance coverage
· US system performs best with regard to preventive care
· Purpose of national health-care system: to contribute to long healthy and productive lives.

B. Assessing quality p. 21
· Quality of the “process” of care is defined as normative behavior
· Quality of care can be assessed by:
o direct examination of care
o Assessment of structure
§ Characteristics of providers
§ tools and resources
§ physical and organizational settings
o Assessment of outcome – easiest to measure

· Medical practice variation highlights role of uncertainty and setting of medical standards (John Wennberg p. 26)
o Effective care: interventions viewed as medically necessary on the basis of clinical outcomes evidence