Study your flashcards anywhere!

Download the official Cram app for free >

  • Shuffle
    Toggle On
    Toggle Off
  • Alphabetize
    Toggle On
    Toggle Off
  • Front First
    Toggle On
    Toggle Off
  • Both Sides
    Toggle On
    Toggle Off
  • Read
    Toggle On
    Toggle Off
Reading...
Front

How to study your flashcards.

Right/Left arrow keys: Navigate between flashcards.right arrow keyleft arrow key

Up/Down arrow keys: Flip the card between the front and back.down keyup key

H key: Show hint (3rd side).h key

A key: Read text to speech.a key

image

Play button

image

Play button

image

Progress

1/30

Click to flip

30 Cards in this Set

  • Front
  • Back
What basic elements must the affidavit filed with the complaint against a 'listed professional' contain?
1) At least one act or omission of negligence by the defendant
2) the factual basis
True or False:
When a hospital is sued under RESPONDEAT SUPERIOR, no filing affidavit is required, although they are sued for the servant professional's UNDERLYING NEGLIGENCE for breach of the standard of care.
False.
In respondeat superior suit for
- servant's breach of S.O.C.
--> Affidavit IS required
HYPO:
Servant Dr. negligently failed to obtain patient's consent for anesthesia.
Hospital is sued for Respondeat Superior.
Is Affidavit required?
Yes.
Dr. is allegedly negligent for breaching the S.O.C.
- case is for respondeat superior
--> Affidavit IS required
HYPO:
Servant Dr. negligently failed to document properly the medications given to the patient.
Hospital is sued for Respondeat Superior.
Is Affidavit required?
Yes.
Dr. is allegedly negligent for breaching the S.O.C.
- case is for respondeat superior
--> Affidavit IS required
If suit against hospital is NOT for
1) respondeat superior
2) as a result of servant's breach of Standard of Care
...
Is Affidavit required?
No.
Is an affidavit required for:
Breach of Fiduciary Duty?

e.g. Lawyer took advantage of client's confidential information
- regarding her emotional/mental condition
- to convince her to sleep with him.
No.

Breach of Fiduciary Duty does not involve "professional judgment"
Is an affidavit required for:
Negligence in
- Administrative
- Clerical, or
- Routine
acts
- Requiring NO SPECIAL EXPERTISE?
No.
HYPO:
Nurse fails to activate an alarm as Dr. ordered.

Is Affidavit required?
No.
This is an "administrative" act.
No "special expertise" is needed to activate an alarm.
Whether to set an alarm is not an exercise of "professional judgment".

This is ORDINARY NEGLIGENCE.
HYPO:
Nurse fails to carry out a Dr's instructions.

Is Affidavit required?
No.
This is an "administrative" act.
No "special expertise" is needed to follow instructions.
Whether to follow instructions is not an exercise of "professional judgment".

This is ORDINARY NEGLIGENCE.
HYPO:
Dr. fails to have appropriate equipment on hand for procedure.

Is Affidavit required?
No.
This is an "administrative" act.
No "special expertise" is needed to remember to bring/order equipment.
Whether to have equipment is not an exercise of "professional judgment".

This is ORDINARY NEGLIGENCE.
HYPO:
- Patient gives consent to medical procedure.
- Patient revokes consent.
- Dr. "touches" patient by performing procedure anyhow.
- Patient alleges "Battery" for lack of consent
--> Is Filing Affidavit Required?
Yes.
A Dr. may have to use "professional judgment" in judging whether he can safely stop the treatment after consent is revoked OR if he must continue for the patient's safety.
What are the elements of a VALID revocation of consent by a patient?
1) Clear revocation
2) Dr. can Safely stop the treatment.

note: #2 involves professional judgment: the weighing of alternatives
What if plaintiff COMPLETELY FAILS to file an affidavit in med mal claim?
1) Permanently Fatal
2) If within statute of limitations, plaintiff can amend complaint and add affidavit
1) Permanently Fatal.

You can't "amend" to add affidavit.
On what issue does the need for an affidavit turn?
Affidavit required if case involves a:
"MEDICAL QUESTION"
True or False:
One has a 45 day "grace period" to file Affidavit if:
- Statute of Limitations expires within 10 days of filing complaint.
False.
Grace period removed by 2005 tort reform.
A "Filing Affidavit" affiant must have what 2 basic qualifications?
1) Satisfy Daubert standard
2) Practiced/Taught
+ in the subject area of specialty
+ in 3 of 5 years
+ immediately preceding
+ the INCIDENT in question
Between Doctors and Nurses, who can testify against who (as to standard of care and breach)?
Doctors can testify against Nurses.

Nurses can NOT testify against Doctors.
True or False:
A filing affidavit must comply with the evidentiary standards for an affidavit used for a Motion for Summary Judgment.
False.
Filing Affidavit

MSJ Affidavit
True or False:
A plaintiff may file a "facsimile affidavit" with the complaint, and file the "original affidavit" later.
True!
The facsimile is proof that Affidavit existed at time of filing.
True or False:
The transcript of an expert's testimony will satisfy the Affidavit Requirement.
False.
To survive judgment, must the expert:
1) ATTACH the referenced medical records, or
2) IDENTIFY the materials relied upon?
Expert must IDENTIFY materials he relies upon.

He need not ATTACH medical records.
True or False:
An improper JURAT
renders a Filing Affidavit
INVALID.
True!

No Jurat => Not "sworn" => Not "affidavit"
True or False:
Because an Affidavit must be Notarized to be valid, if the notary's comission is EXPIRED, the Affidavit is INVALID.
False.

The affidavit may still be valid.
True or False:
Because Notary swears oath was administered "before me"
- if oath administered over TELEPHONE
- Affidavit is INVALID
True.

Oath must be given by Notary IN PERSON.
What motion should defendant make to:

Challenge sufficiency of med mal Filing Affidavit
?
"Motion to Dismiss for Failure to State a Claim"
When must Defendant file Motion to Dismiss for FAILURE TO FILE an Affidavit?
With the ANSWER.
When may Defendant file Motion to Dismiss for DEFECTIVE Affidavit?
Any time up to the
CLOSE OF DISCOVERY.
If Court dismisses Plaintiff's complaint for No/Defective Affidavit, is dismissal:
1) With Prejudice, or
2) Without Prejudice
?
WITH PREJUDICE

So Get the Affidavit Right !!
If Defendant makes Motion to Dismiss for DEFECTIVE Affidavit:
1) Can Plaintiff Cure ?

2) If so, how long does he have?
Yes. Plaintiff can cure "Defective" affidavit.

He has 30 days to cure.
HYPO:
Filing Affidavit has discrepancy between
1) date of expert's signature, and
2) date of oath given by Notary.
...
Can Plaintiff make "Follow-Up Affidavit" to clarify the discrepancy?
Yes.
Trial court May consider an expert affidavit clarifying a discrepancy between date of signature and date of oath administered by the notary public.