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77 Cards in this Set
- Front
- Back
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What creates the Duty for a doctor in a mel mal case? |
Establishment of a Doctor/patient relationship |
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How do you create a Dr/Pt relationship? |
Must take an affirmative step to treat the patient such as acceptance of the paitent. |
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What are the balancing factors for a doctor's duty? |
1. relationship between the parties 2. reasonable foreseeability of harm to the person injured 3. public policy concerns |
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Who decides if a relationship existed? |
Factfinder |
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Does being on-call create a Dr/Pt relationship? |
Being available to be consulted does not establish a relationship |
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Is direct contact necessary? |
Direct contact is not necessary if the doctor participates in the diagnosis of the patient's condition or participates and prescribes treatment for the patient Ex. House |
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Is consent necessary? |
Consent of both the doctor and the patient is necessary. |
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What case created the balancing factors for duty to a 3rd person for med mal? |
Webb v Jarvis- Doctor not responsible for person shot by patient who was prescribed steriods |
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What are the two important points for a relationship between the parties? |
1. Duty defined as implied contract --Physician possesses ordinary knowledge and skills of his profession --reasonable, diligent, careful manner in treatment 2. not liable to 3rd parties unless professional had actual knowledge that those 3rd parties would have such reliance |
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What are two important points for foreseeability? |
1. Focus on --was injured person a foreseeable victim --was type of harm reasonably foreseeable 2. duty is only owed to those who might reasonably be foreseen as subject to injury |
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What are any public policy concerns for a doctor's duty? |
Doctor should be able to fulfill his duty to the patient without fear of being exposed to liability to unknown, unidentified third persons |
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What case established the 3 balancing factors for a doctor's duty? |
Walker v Rinck- Pregnant mother Rhogram case |
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What case established the need for an affirmative step by the doctor to establish duty? |
Miller v Martig- Anesthesiologist on-call that didn't administer the epidural |
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What defines the element of breach in a med mal case? |
Standard of Care |
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What is the definition of standard of care? |
Degree of care, skill, and proficiency which would be exercised by an ordinary careful, skillful, and prudent physician under the same or similar circumstances |
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What are the factors for standard of care? |
Locality, advances in medicine, availability of facilities, if doctor was a specialist |
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Who has the burden of proof for standard of care? |
Plaintiff- must prove what the standard was and that the doctor breached that standard. |
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What considerations are involved for standard of care? |
What the healthcare provider knew and should have known at the time of care |
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Are alternatives allowed for standard of care? |
Alternatives are allowed if that are reasonable and applicable. |
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Does a bad result automatically suggest proof of negligence? |
No- medicine is an inexact science |
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Is a physician simply liable for failing to make a cure or failing to make the correct diagnosis? |
No, a physician is not liable for making an honest mistake of judgment |
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How do you prove the standard of care? |
1. Experts- unless injury is so simple that common knowledge can determine negligence. (Ex. burn on stomach during surgery) 2. Guidelines (disclaimers) 3. Policies and procedures |
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What is the definition of proximate cause for med mal? |
Burden is on the plaintiff to establish, by a preponderance of the evidence, that the defendant was the cause of the plaintiff's injury -but for standard |
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Does the defendant's act need to be the sole cause? |
No, just only one of the proximate causes |
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What is Res Ipsa for med mal? Example? |
Plaintiff needs to show only that a particular result occurred, and it would not have happened but for the defendant's negligence. -leaving a medical tool in the body |
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What is burden of proof for punitive damages? |
must prove willful and wanton misconduct which, under existing circumstances, the tortfeasor knows will probably result in injury |
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What is the burden for defendants? |
Must affirmatively disprove the elements if the plaintiff can prove all elements |
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What is the important takeaway from the Long v Methodist Hospital? |
Nurses are not qualified to offer expert testimony as to the medical cause of injuries or as to increased risk of harm |
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What are two important takeaways from Daub v Daub? |
1. Plaintiff's burden may not be carried with evidence based merely upon supposition or speculation. Mere possibility of cause is not sufficient 2. Civil liability must be more than speculation |
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What is required of meaningful notice for apparent agency theory? |
1. Hospital must provide meaningful written notice to the patient, acknowledged at the time of admission that not all doctors are employees of the hospital --where is it located? --what does it say? |
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What is the second factor for apparent agency theory? |
Did the patient have special knowledge regarding the arrangement the hospital has made with its physicians? |
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What is the third factor for apparent agency theory? |
Should the patient have known of employment relationships? --advertising --badges --color of scrubs |
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What is the assumption given to juries for apparent agency theory? |
Independent contractors are employees of the hospital unless the hospital put patient on notice that physician was not an employee |
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Takeaway from the Sword v NKC case? |
Indiana adopted Restatement 429 for apparent agency theory. |
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Takeaway from Columbus Regional Hospital v Amburgey |
Can still bring apparent authority theory even if statute of limitations has ran for independent contractors |
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What are the 6 defenses to Med Mal? |
1. Contributory negligence 2. Mitigation of damages 3. Incurred risk 4. Standard of care not breached 5. No proximate cause 6. Statute of Limitations |
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What are 3 policies behind the Statute of Limitations? |
1. Encourage prompt presentation of claims 2. Evidence issues: dimmed memories, relocation/death of witnesses, and lost documents 3. Harm can be exacerbated where the injured party continues to grow, develop, and change, both physically and mentally after the injury complained of has occurred |
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When does the SOL stop running? |
Upon filing with the Indiana department of insurance. |
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Takeaway from the Johnson v St. Vincent case? |
Upholds the SOL as Constitutional |
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Takeaway from Martin v Richey? |
Adds latency period for a disease that does not manifest significant pain or symptoms until several years after malpractice. Patient must have exercised "reasonable diligence" to during 2 year period |
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Takeaway from Boggs v Tri State? |
SOL not unconstitutional if filing of the claim not impractical during 2 year period |
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Takeaway from Booth v Wiley? |
Date of Occurrence = 1. Trigger Date- when plaintiff should have discovered alleged malpractice 2. if more than 2 years, 2 more years to initiate action 3. reasonable time if within 2 years, but impractical to file a claim |
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Takeaway from Ledbetter v hunter? |
Children's SOL is constitutional |
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Takeaway from Herron v Anigbo? |
Adopts framework laid out in Booth v Wiley |
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Takeaway from Overton v Grillo? |
Plaintiff knew enough despite not being diagnosed that she was on notice of possible malpractice |
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Takeaway from Workman v O'Bryan? |
Case by case basis for reasonability to file within 2 year period |
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What is a qualified healthcare provider for IN Med Mal Act? |
1. Proof of financial responsibility 2. Payment of surcharge |
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What is Step 1 of Med Mal complaint? |
1. IDOI- make appearance 2. State Court- make motion for extension of time to respond |
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What is Step 2 of Med Mal Complaint? |
Serve Discovery 1. Interrogatories 2. Request for Production 3. Requests for Admission
Court responses? 1. determine affirmative defenses or issues of law or fact under IN trial rules 2. compel discovery under IN trial rules |
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What is Step 3 of Med Mal Complaint? |
Record Collection 1. Client's Records --All including originals and billing records 2. Co-Defendant's Records 3. Plaintiff's Records |
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What is Step 4 of Med Mal Complaint? |
Analysis and Identification of Issues 1. Medical Chronology 2. Allegations of Negligence |
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What are the 6 allegations of negligence? |
1. Failure to diagnosis patient 2. Failure to document pertinent info 3. Failure to execute a complete history and physical 4. Failure to perform a treatment or procedure properly 5. Failure to refer 6. Failure to obtain informed consent |
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What are 7 further allegations of negligence? |
7. Failure to observe proper technique 8. Failure to adequately screen 9. Use of incorrect equipment/known defective equipment 10. Altering a medical record 11. failure to follow hospital policy/procedure 12. Informed consent 13. Peer Review Issues |
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What is Step 5 of Med Mal claim? |
Interviews 1. Physician Defendant 2. hospital Defendant- all employees around at alleged negligence |
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What is step 6 of med mal claim? |
Depositions 1. Patient 2. Plaintiff (if not patient) 3. Client |
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What is step 7 of med mal claim? |
Experts?
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What is Step 8 of med mal claim? |
Medical Review Panel 1. Request for Panel 2. Panelists --licensed in IN --striking panels --conflicts check |
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What are the 4 possible conclusions of the MRP? |
1. Defendant failed standard of care 2. Defendant did not fail standard of care 3. Material issue of fact regarding liability 4. conduct was or was not a factor of the damages |
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What is the IN cap on damages? |
1.25 mil Planck case- can challenge constitutionality of the cap |
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What is Wrongful Death cap? |
Family person- no cap Single- 300k cap |
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Takeaway from Mayhue v Sparkman case? |
Adopt Restatement 323- question for jury as to whether or not the increased risk was a substantial factor in producing the harm |
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Takeaway from Cahoon v Cummings case? |
For increased risk of harm, damages are proportional to increased risk attributable to the defendant's negligent act or omission |
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How are derivative claims limited? |
No separate cap- limited to the cap of the original injury Cases- Wolfe, Winkle, Butcher |
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How are medical expenses used? |
Rule 413- for the reasonable value of necessary medical services Bulter- single people as well Stanley v Walker- can also put in the amount insurance paid without saying the word insurance. |
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5 policy reasons behind informed consent |
1. protect individual autonomy 2. protect status of patient as human being 3. avoid fraud or duress 4. encourage doctors to carefully consider decisions 5. foster rational decision making by patient |
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Statutory requirements for informed consent? |
1. explanation of patient's condition 2. proposed treatment 3. outcome 4. alternative and risks |
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Situations where informed consent is not required? |
1. Mental disability 2. emergency |
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What creates a rebuttable presumption that informed consent was created? |
1. Written consent signed by patient 2. witnessed 3. explained either orally or written |
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How is informed consent presented? |
Expert testimony |
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HIPAA rules |
1. Original health record is property of the provider 2. Info in HR belongs to patient 3. Title 1 regulates health insurance 4. Title 2- health info 5. rules for "covered entities" and "business associates" may use PHI |
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Peer Review Facts |
Privileged material Fridono v Chuman -can't stamp Peer Review on all documents to keep it privileged -promotes doctor candor and frank evaluation -final action (modification, restriction, termination of privileges) outside the scope of privilege and is discoverable |
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What is step 1 of med mal claim for plaintiff's attorney? |
What is the alleged negligence? -standard of care? -vicarious liability case? -Identify acts/omissions
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What is step 2 of the med mal claim? |
Who are the defendants? -identify by name -has relationship been established -jurisdiction? -SOL? Date of negligence? -qualified? |
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What is step 3? |
Is there causation? Any possible defenses? |
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What is step 4? |
Propose the complaint |
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What is step 5 |
Discovery -written discovery -depositions -expert reviews -med research |
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What is step 6 |
Medical Review Panel |
