Med Mal - Causes Of Action

Front 1

True or False: An error in professional judgment that results in 1) misdiagnosis or 2) mistreatment
DOES insulate the Dr. from liability (even though the Dr. failed to exercise the requisite degree of skill and care)

Back 1

False.

Front 2

What is the "Abandonment" cause of action?

Back 2

This cause of action accrues when:
A Dr. stops treating a patient at a critical time
- without sufficient notice for the patient to obtain another competent Dr.
- OR the Dr. fails to provide the patient with a qualified substitute.

Front 3

What can a plaintiff (personal representative) recover in a "Wrongful Death" c/a ?

Back 3

-The full value of the decedent's life
-NO deduction for necessary/personal expenses of decedent had he lived
-Pain & Suffering
-Funeral expenses
-Medical expenses [time of med mal until death]

Front 4

What is the "Wrongful Birth" cause of action?

Back 4

There is NO recovery for wrongful birth.
The legislature must create such a c/a.

Front 5

What is the cause of action if:
- Dr. is negligent in failure to perform amniocentesis. - Causes increased risk of genetic abnormalities & Down-Syndrome child.

Back 5

Would be "wrongful birth" if there were such a c/a.

Front 6

Any recovery if Dr.'s negligence causes Down-Syndrome child, and child becomes destitute adult?

Back 6

Maybe. It's not "wrongful birth", but plaintiff might recover for expenses. (dicta)

Front 7

Cause of Action if:
- Dr. fails to properly perform sterilization or an abortion?
What recovery?

Back 7

"Wrongful Pregnancy"
- Yes: Pain & suffering
- Yes: cost of medical complications
- Yes: lost wages & consortium
- No: cost of raising child

Front 8

Requirements to avoid "Negligent Sterlization" c/a ?

Back 8

A: Dr. gives Full and Reasonable Explanation as to 1) meaning, and 2) consequence of operation
B: Non-negligent performance of sterilization

Front 9

True or False: Generally, Patients can recover for both 1) INTENTIONAL Infliction of Emotional Distress, and 2) NEGLIGENT Infliction of Emotional Distress.

Back 9

False. Only INTENTIONAL is a c/a; not NEGLIGENT (generally).

Front 10

How CAN one recover for NEGLIGENT Infliction of Emotional Distress?

Back 10

"Impact Rule" - If there was an 'impact' (= physical injury), then can have NIED.

Front 11

True or False: Under the "Impact Rule", which requires a physical injury to get NIED, the emotional damages must FLOW FROM the phsical injury.

Back 11

False.

Front 12

HYPO: A mother and child are physically impacted in an accident caused by D's negligence. [impact]. The mother seeks emotional distress damages from watching her child suffer after the accident. [NIED]
Can she?

Back 12

Yes. The "impact" needed for NIED is satisfied.
The "injury" need not cause the "emotional damages".
Mom can pursue the NIED claim.

Front 13

Is there ever NIED without physical injury?

Back 13

Yes.
Non-physical injury to the person [aggravation of mental illness]
+ Pecuniary Loss (mental health bills)
==> NIED c/a

Front 14

What is the Med Mal "breach of contract" cause of action?

Back 14

Dr. undertakes patient care
-> implied promise that Dr. possesses the requisite skill and care to treat the patient
-> Breach of promise = action

Front 15

True or False: Different Statute of Limitations applies when a Med Mal action sounds in Contract instead of Tort.

Back 15

False.

Front 16

What is the cause of action if:
- patient undergoes procedure
- based upon INACCURATE INFORMATION from a Dr.

Back 16

"Breach of Fiduciary Duty"

Front 17

When are Punitive Damages appropriate in med mal?

Back 17

- Clear & Convincing Evidence
that Dr's actions were:
1) willful, or
2) entire want of care = conscious indifference.

Front 18

True or False:
Gross negligence alone authorizes punitive damages

Back 18

False. Gross negligence is not the required "willful" or "conscious indifference" action

Front 19

Why is "Fraud" a cause of action?

Back 19

1) Dr-patient relationship = "confidential"
2) So, SILENCE or FAILURE TO DISCLOSE = Fraud.

Front 20

Elements of "Fraud" cause of action?

Back 20

1) MISREPresentation
(Willful misrepresentation of a material fact, OR
reckless representation of facts as true when they aren't)
+
2) made to INDUCE the patient to act
+
3) patient ACTS to his INJURY

Front 21

True or False:
A "misdiagnosis" can constitute "fraud"

Back 21

False.
Misdiagnosis is neither a "willful" or "reckless" representation.

Front 22

True or False:
Georgia protects the "patient-physician privilege"

Back 22

False

Front 23

Cause of Action if:
If a Dr. releases a patient's medical information?

Back 23

"Invasion of Privacy"
1) Patients have privacy interest in their medical info
2) So, this c/a for wrongful release.

Front 24

When is a Dr. immune from the "Invasion of Privacy" c/a?

Back 24

When release of medical info is
1) made pursuant to law or subpoena,
2) made in good faith pursuant to a Request of Production in case where patient placed his/her injuries at issue.

Front 25

True or False: "Administrative Acts" do not require an expert affidavit, but "Acts requiring Professional Knowledge, Skill or Expert Experience" DO require an expert affidavit.

Back 25

True.
Administrative --> no affidavit

Professional Judgment --> yes affidavit

Front 26

True or False:
Allowing a patient to fall out of bed and break his hip is an "administrative act" so no expert affidavit is needed

Back 26

True

Front 27

True or False:
If a hospital employee installs wrong replacement parts in surgical equipment, since this required "professional judgment" an expert affidavit is needed.

Back 27

False. Installing right/wrong replacement parts in equipment is an "administrative act".

Front 28

Choose:
-When a chart documents that a weakened patient needs maximum supervision while bathing, and
- the patient tells the Dr. "I am slipping"
- that the Dr. left the weakened patient standing in the shower sounds in
1) Ordinary Negligence,
2) Professional Negligence
in a chart
an occupational therapist le

Back 28

1) Ordinary Negligence

Front 29

Cause of Action if:
- physician was incompetent
- hospital knew it (or it was apparent from facts they knew)

Back 29

"Negligent Grant of Staff Privilege" or "Negligent Retention"
> hospital liable for Dr's acts

Front 30

Defense for hospital's vicarious liability under "Negligent Retention" or "Negligent Grant of Staff Privileges" ?

Back 30

1) hospital complied with notice provisions (about lack of Agency)
2) No Actual Agency or Employment Relationship

Front 31

HYPO:
Dr. allows unqualified employee to give medical opinion/advice.
Can Dr. be held individually liable?

Back 31

Yes.

Front 32

True or False:
Medical practicioners are held to STRICT LIABILITY.

Back 32

False

Front 33

When does a Dr. owe a duty to a THIRD PARTY outside the Dr./Patient relationship?

Back 33

1) Mental hospital has "special relationship of control" over homicidal patient.
2) General duty to ALL THE WORLD not to subject people to unreasonable risk of harm.

Front 34

Cause of action if:
One spouse suffers loss of her Injured Spouse's SERVICES?

Measure of Damages?

Back 34

c/a: "Loss of Consortium"

measure: the "englightened conscience of the jury" based on
-services, society, companionship, etc.

Front 35

Cause of Action if:
-Dr. intentionally performed treatment (i.e. a "touching")
-that patient objected to, didn't consent to, or withdrew consent (i.e. "offensive")

Back 35

"Battery"

Front 36

Is a Filing Affidavit required for a battery claim?

Back 36

No.

Front 37

Define "Joint Tortfeasor"

Back 37

Those whose acts of negligence, when combined, cause a single indivisible injury.

Front 38

Do "Joint Tortfeasors" have "Joint and Several Liability"?

Back 38

< 2/16/05: YES
>= 2/16/05: NO (pay only proportionate share after discount for P's contributory fault)