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38 Cards in this Set

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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)
False.
What is the "Abandonment" cause of action?
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.
What can a plaintiff (personal representative) recover in a "Wrongful Death" c/a ?
-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]
What is the "Wrongful Birth" cause of action?
There is NO recovery for wrongful birth.
The legislature must create such a c/a.
What is the cause of action if:
- Dr. is negligent in failure to perform amniocentesis. - Causes increased risk of genetic abnormalities & Down-Syndrome child.
Would be "wrongful birth" if there were such a c/a.
Any recovery if Dr.'s negligence causes Down-Syndrome child, and child becomes destitute adult?
Maybe. It's not "wrongful birth", but plaintiff might recover for expenses. (dicta)
Cause of Action if:
- Dr. fails to properly perform sterilization or an abortion?
What recovery?
"Wrongful Pregnancy"
- Yes: Pain & suffering
- Yes: cost of medical complications
- Yes: lost wages & consortium
- No: cost of raising child
Requirements to avoid "Negligent Sterlization" c/a ?
A: Dr. gives Full and Reasonable Explanation as to 1) meaning, and 2) consequence of operation
B: Non-negligent performance of sterilization
True or False: Generally, Patients can recover for both 1) INTENTIONAL Infliction of Emotional Distress, and 2) NEGLIGENT Infliction of Emotional Distress.
False. Only INTENTIONAL is a c/a; not NEGLIGENT (generally).
How CAN one recover for NEGLIGENT Infliction of Emotional Distress?
"Impact Rule" - If there was an 'impact' (= physical injury), then can have NIED.
True or False: Under the "Impact Rule", which requires a physical injury to get NIED, the emotional damages must FLOW FROM the phsical injury.
False.
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?
Yes. The "impact" needed for NIED is satisfied.
The "injury" need not cause the "emotional damages".
Mom can pursue the NIED claim.
Is there ever NIED without physical injury?
Yes.
Non-physical injury to the person [aggravation of mental illness]
+ Pecuniary Loss (mental health bills)
==> NIED c/a
What is the Med Mal "breach of contract" cause of action?
Dr. undertakes patient care
-> implied promise that Dr. possesses the requisite skill and care to treat the patient
-> Breach of promise = action
True or False: Different Statute of Limitations applies when a Med Mal action sounds in Contract instead of Tort.
False.
What is the cause of action if:
- patient undergoes procedure
- based upon INACCURATE INFORMATION from a Dr.
"Breach of Fiduciary Duty"
When are Punitive Damages appropriate in med mal?
- Clear & Convincing Evidence
that Dr's actions were:
1) willful, or
2) entire want of care = conscious indifference.
True or False:
Gross negligence alone authorizes punitive damages
False. Gross negligence is not the required "willful" or "conscious indifference" action
Why is "Fraud" a cause of action?
1) Dr-patient relationship = "confidential"
2) So, SILENCE or FAILURE TO DISCLOSE = Fraud.
Elements of "Fraud" cause of action?
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
True or False:
A "misdiagnosis" can constitute "fraud"
False.
Misdiagnosis is neither a "willful" or "reckless" representation.
True or False:
Georgia protects the "patient-physician privilege"
False
Cause of Action if:
If a Dr. releases a patient's medical information?
"Invasion of Privacy"
1) Patients have privacy interest in their medical info
2) So, this c/a for wrongful release.
When is a Dr. immune from the "Invasion of Privacy" c/a?
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.
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.
True.
Administrative --> no affidavit

Professional Judgment --> yes affidavit
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
True
True or False:
If a hospital employee installs wrong replacement parts in surgical equipment, since this required "professional judgment" an expert affidavit is needed.
False. Installing right/wrong replacement parts in equipment is an "administrative act".
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
1) Ordinary Negligence
Cause of Action if:
- physician was incompetent
- hospital knew it (or it was apparent from facts they knew)
"Negligent Grant of Staff Privilege" or "Negligent Retention"
> hospital liable for Dr's acts
Defense for hospital's vicarious liability under "Negligent Retention" or "Negligent Grant of Staff Privileges" ?
1) hospital complied with notice provisions (about lack of Agency)
2) No Actual Agency or Employment Relationship
HYPO:
Dr. allows unqualified employee to give medical opinion/advice.
Can Dr. be held individually liable?
Yes.
True or False:
Medical practicioners are held to STRICT LIABILITY.
False
When does a Dr. owe a duty to a THIRD PARTY outside the Dr./Patient relationship?
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.
Cause of action if:
One spouse suffers loss of her Injured Spouse's SERVICES?

Measure of Damages?
c/a: "Loss of Consortium"

measure: the "englightened conscience of the jury" based on
-services, society, companionship, etc.
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")
"Battery"
Is a Filing Affidavit required for a battery claim?
No.
Define "Joint Tortfeasor"
Those whose acts of negligence, when combined, cause a single indivisible injury.
Do "Joint Tortfeasors" have "Joint and Several Liability"?
< 2/16/05: YES
>= 2/16/05: NO (pay only proportionate share after discount for P's contributory fault)