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20 Cards in this Set

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Define Malpractice
- particular form of negligence
- consists of NOT applying to the practice of medicine
- a reasonable degree of care and skill
Define "reasonable degree of care and skill"
-that degree of care and skill
- which is ordinarily employed
- by the profession generally
- under similar conditions
- and like surrounding circumstances
3 Elements of Med Mal Action
1) Duty inherent in provider-patient relationship
2) Breach of duty by failing to exercise requisite degree of skill and care
3) This failure is Proximate Cause of the injury sustained
Can a Dr's referral to another Dr of hospital form a "Physician-patient" relationship?
Yes.
Does a Dr's examination for determining worker's comp. or disability benefits create a Duty to the patient?
No.
In med mal, do we presume the medical services WERE or WERE NOT performed in an ordinarily skillful manner?
Who has burden?
Presume they WERE.
Burden is on the one receiving services to show lack of due care, skill and diligence.
How is the proper standard of care established?
1) testimony of physicians
2) jury can set up artificial standard of measurement
Testimony of Physicians
True or False: The standard of care can be established by testimony of what a particular Dr. would have done
False
True or False: The "general" standard is a LOCAL standard, not a NATIONAL standard.
False. The general standard is NATIONAL.
True or False: When a plaintiff questions the adequacy of services or facilities of a hospital, we use the "locality rule".
True
What is the "locality rule"?
A hospital must exercise - ordinary care
- to furnish equipment and facilities
- reasonably suited to the uses intended
- and such as are in general use
- in hospitals in the area
When a plaintiff questions the Professional Judgment of a hospital's employee:
1) The "locality rule" applies, or
2) a "general" professional standard applies to:
the training and qualification the employee is subject to (if any).
Professional Judgment = General Standard

c.f. Services/Facilities = Locality Rule
When a patient is injured getting: 1) emergency care in E.R. or OB unit, or 2) the O.R. after 1st going to the E.R. ...
What Burden of Proof applies?
ER = highER B.O.P.

GROSS Negligence
+ Clear and Convincing evidence

[NOT E.R. = simple negligence + preponderance standard]
If patient goes to E.R., then is stabilized and the "emergency" is gone ...
What Burden of Proof applies?
No longer getting "emergency care" so...
Simple Negligence
+ Preponderance of Evidence
Define "Gross Negligence"
The absence of that degree of care
- which EVERY person of common sense
- no matter HOW INATTENTIVE he or she may be
- would exercise under the circumstances
- or would exercise toward his or her OWN property.
True or False: A physician guarantees the results of his treatment.
False.
True or False: That the result of treatment is not what was expected or desired
CAN establish (or you can infer) lack of proper care, skill, or diligence by the Dr.
False. If a Dr. is not negligent, an unexpected result does NOT establish malpractice.
True or False: Hindsight is used to judge the Dr's actions, decisions or thought processes. NOT the Dr's knowledge of the patient's condition at the time of evaluation or treatment.
False. A Dr. can treat a patient based only on knowledge of the patient's condition at the time an evaluation is made or treatment administered.
Define "Negligence Per Se"
1) The Person harmed falls within the CLASS of persons the leg. intended to protect
AND
2) the HARM suffered must be the same harm the statute was enacted to protect.
True or False: A finding of Negligence Per Se automatically makes the defendant liable
False. The plaintiff must still prove PROXIMATE CAUSE between the negligence and the injury.