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56 Cards in this Set
- Front
- Back
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What are the elements of Medical Negligence
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1. Duty - SOC under the circs
2. Breach - departure from the SOC 3. Causal Harm - departure from standard causes harm to the patient 4. Legal Harm -Todd v. Eitel Hospital |
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Todd v. Eitel Hospital
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-more than just a bad outcome to establish negligent care
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Duty Generally
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-fiduciary relationship
-foreseeability of harm -Lundegren v. Flutz |
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Lundegren v. Flutz
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-duty to control
-schizo that shot woman in restaurant -public policy issue |
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Duty: Physician/Patient
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Question of fact
-whether there is a mutual consensual relationship (express or implied) -whether there is an expectation of treatment or advice -whether there is actual treatment/advice provided -Henkemeyer v. Boxall -McElwain -Peterson v. St. Cloud Hospital |
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Henkemeyer v. Boxall
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-physician/patient relationship
-no relationship -insurance evaluation -no expectation |
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McElwain
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-physician/patient relationship
-lady passed out when she saw brother put under & hit her head -no relationship |
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Peterson v. St. Cloud Hospital
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-physician/patient relationship
-pathologist error -implied relationship |
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Duty: Accepted Standards of Practice
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-judged by someone in some specialty (Nelson v. Dahl)
-departure requires more than bad outcome (Todd . Eital) --> must show that departure was the error -Evidence of departure (Smith v. Knowles) -You can ask co-D about SOC -Medical lit is cool (Reinhardt) -Follow National Standards (Christy) |
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Honest Error in Judgment
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-Duty/Acc SOC
-doc can choose between 2 accepted courses of treatment -must use reasonable care in gathering info to choose (JIG 80.10; Ouliette v. Subak) |
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Duty to Refer
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-Doc knows or should have known that condition beyond his ability to treat
-Doc failed to advise patient of risk and recommended referral -Doc held to the standard of a specialist -causation -Larson v. Yelle, Lane v. Skyline) |
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Lane v. Skyline
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-woman had issues with her pregnancy
-baby came out all f'ed up -ct said that her treatment was ASOC because he did everything ok -offered no evidence that referral to a baby doc would have changed the outcome |
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Causation (Duty to Refer)
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-more probable than not that departure caused the harm
-was departure a substantial factor -but-for test (not the law in MN but best way to analyze) |
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Duty of Credentialing & Privileging
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-much protection for the hospital on this/generally immune
-unless you are an obvious & total hack -Larson v. Wasemiller |
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Consent to Treatment: Battery
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-Battery - unauthorized/unpermitted touching
-touching substantially different in nature & character (Bang, Cornfeldt) -implied consent = emergency/life or limb defense -right to do w/one's own body -no expert required -Bang - ok'd the procedure but not being sterile -Mohr - op'd on wrong ear, situation not emergent enough |
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Negligent Non-Disclosure
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-right to make an informed decision on medical care
-doc has a duty to disclose risks/alternatives that are: known to the or should be known to them |
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NND: Types of info to disclose
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-risks usually disclosed under similar circs (ASOC)
-significant risk of harm or death -risks doc knows would be significant to patient |
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NND: Causation
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-person in patient's position would reject treatment (objective standard)
-undisclosed risk caused the harm |
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Corndeldt v. Tongen
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-NND: Causation
-patient must have sufficient info about what its happening to/in his/her body to make informed consent -P must provide expert testimony when showing that nondisclosure of risk of medical treatment proximately caused the death -P thought stomach cancer but really hep, died after surgery (had additional risks) |
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Duty to Non-Patients
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-duty not to do the harm
-duty to continue helping them if you start -Molloy v. Meier -Skillings v. Allen -Lundegren |
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Molloy v. Meier
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-Duty to Non-patient
-genetic case -duty arises from nature of the relationship -mental retardation in kid -second kid |
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Skillings v. Allen
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-Duty to Non-Patient
-scarlet fever -said ok to take the kid home -duty to parents - when your negligent actions give rise to the risk -doc neg acted and a 3rd party was affected |
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Duty Created or Limited By Statute: Prohibition of Tort Actions (145.424)
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-wrongful life action prohibited
-wrongful birth action prohibited -failure or refusal to prevent a lie birth -Sherlock v. Stillwater |
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Sherlock v. Stillwater
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-Statutory Prohibition of Tort Actions (145.424)
-action for wrongful conception after negligent sterilization operation -damages include: all prenatal & post-natal medical expenses, mothers pain & suffering during pregnancy & delivery, loss of consortium -reasonable costs of rearing unplanned kid subject to offsetting the value of kid's aid, comfort & society during parent's life expectancy - |
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Reporting of Maltreatment of Minors
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-626.556
-public policy: to protect kids whose health or welfare may be jeopardized through physical/sexual abuse or neglect -required reporting -Becker v. Mayo |
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Becker v. Mayo
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626.556
-reporting of maltreatment of minors -adoptive parents of abused kid sued hospital for not reporting abuse from biological dad -failure to prevent ongoing abuse -CARA's rep requirement was admissible as evidence that a physician of ord skill who suspected that a patient was abused would report the suspicious abuse |
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Reporting of Maltreatment of Vulnerable Adults
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-626.557
-to protect adults who are vulnerable -mandatory reporting -Losen v. Allina Health |
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Losen v. Allina Health
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-626.557
-MN Stat 253B.23 Subd. 4 - provides immunity from both criminal and civil liability for "good faith" efforts with regard to the commitment of an indv -25 yo diagnosed w/epilepsy was having hallucinations maybe due to change in seizure meds -parent reduced meds against advice of doc -dude killed dad, mom, and tried to kill step-mom |
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Duty of Patient - Contributory Negligent
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-contributory fault - today 50/50 P wins (Martineau v. Nelson)
-submitted in limited circs |
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Tomfohr v. Mayo
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-Cont Neg
-asked for specific jury inst; not typical cont neg case -dude hung self w/duffe @ crazy ward |
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When is Cont Neg used?
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-submitted in limited circs
-when there is a disparity of knowledge (Martineau/Quick) -When? - failure to follow specific inst; refusal of treatment; false info to doctor -Martineau - P went in for fertility issues, said she was good to go, offered hubby free snipping, didn't do - not cont neg because should be able to rely on doc's statements that she was good to go -Quick - fell out of bed after electroshock; should have been watched in the ordinary care of the hospital |
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Breach of Duty - Departure from ASOC
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-Common knowledge
-exception to expert requirement -Schulz v. Feigal - gave patient adrenaline, she freaked so they tranq'ed her but didn't observe, fell and had injuries (unbroken chain of events - common knowledge) |
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Res Ipsa
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-injury doesn't occur absent negligence
-established by common sense or expert -cause is under exclusive control of D; P didn't voluntarily contribute to injury **do not need expert testimony -substitutes for evidence to meet prima facie case of neg -Hovan v. Rick - bad outcome doesn't = negligence; res ipsa shouldn't apply -Jensen v. Linner - initial treatment was hysterectomy, found bad appendix; burn on leg...didn't have to rule out other poss because it was so obvious; use this as evidence |
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Expert testimony
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-How to qualify to give an opinion
-medical education & practical experience - usually required on causation (Schultz v. Feigal) |
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Certification of Expert Review Statute
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-145,682 requirements
-affidavit of expert review -affidavit of expert identification |
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Qualifications for Expert Witness
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-Basic ed & proof of training
-practical experience in sub. matter -similar specialty - not always specialty (Hess v. Gaviser) -Role of Cross Exam (in challenging weight of test) |
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Affidavit of Expert Review
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-145.682
-must be made by P's atty and state that facts have been reviewed by P's atty w/expert (who was qualified & could be admissible @ trial), and that opinion was that 1+ D's deviated from the ASOC when they caused injury -and expert could not be reas. obtained before action commenced because of SOL -must be served upon D w/i 90 days of summons/complaint |
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Affidavit of Expert ID
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-145.682
-required w/i 180 days of commencement of action -ID of exp to be called at trial -opinions on malpractice & causation -substance of facts/opinions -grounds for each opinion |
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Penalty for Non-Compliance (Experts Stat)
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-failure to comply w/i 60 days after demand for aff results
-mand dismissal w/prejudice of each COA as to which expt test is nec to est a PF case (sub 3) -must provide 45 days for P to submit substitute "curing" the claimed deficiencies; ct can extend deadline for good cause |
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Scientific Reliability
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-State v. Mack
-precise std for admitting expert testimony -hypnosis case; couldn't remember if raped or not -no lengthy term; results of mechanical or scientific testing unless it's developed or proven - accepted norm is in the world of medicine -good for therapeutic but not ct rm -Goeb v. Tharaldson - key; upheld 2 pt Frey-Mack std (scientifically reliable & generally accepted in the medical community) |
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Differential Diagnosis
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-dude had a stroke during influsions
-had other health issues -didn't eliminate all so it wasn't generally reliable in the scientific community -did some bs tests that didn't address specific strokes (McDonough v. Allina) |
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Substantial Factor Causation
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-more probable than not standard
-but-for (not law in MN but best analysis) -to prove causation & decide the harm claimed; what's the likelihood of treatment at certain pt (50%); evidence of likelihood of reaccurence |
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Substantial Factor Cases
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-Crosby v. Myhra - said diag should have been made earlier & had exp test; below std not to see what was on the film
-Clark v. George - cause is a direct cause of a harm if it's a subst factor -Walton v. Jones - docs failed to give drugs that reduced risk of clotting w/his history; have to get experts to say "more likely than not" (consistent with is not enough) |
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Substantial Factor More
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-more probable than not
-was the departure a sub factor -expert usually required -circ evidence is cool -consistent with not enough causation (Walton) -inference based on fact is cool (Crosby) -Goodrich - undisclosed risk caused harm -Clark - substantial factor/proximate cause |
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Superceeding Cause
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-harm occurred after original negligence
-harm not brought about by original negligence -not foreseeable -subsequent conduct brings about diff result **has to be some act or conduct that jumps in & totally changes the course of events **does not relieve the original wrongdoer of liability if there is a continuous duty toward P |
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Sandhoefer v. Abbot NW
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-Superceeding Cause
-casted wrist -changed & had necrosis -discharged himself & went to other hospital for amputation -nurses @ 1st hosp observed & found nothing wrong |
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Delay of Diagnosis
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-Cancer
-ID the harm caused by the delay -is it more probable that the harm was caused by the delay? (Fabio) -if injury is death (or probability of death) |
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Delay of Diagnosis - P's proof
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-must prove:
-probability of survival @ time of prognosis -that patients' prog changed from prob of survival to prob of death |
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Delay of Diagnosis - Cases
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-Leubner v. Sterner - no compensatory damage @ time of misdiagnosis; mere presence of cancer cells is not compensable until the patient can show that the delay resulted in diff outcome
-Fabio - action alleging misdiagnosis of cancer accrued @ time of misdiagnosis beuase some damage (presence of cancer) occurred immediately |
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SOL - Termination of Treatment
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-541.076 - Healthcare provider actions
-Physician, surgeon, dentist, occ. therapis, or other health care prof as defined in 145.61, hospital or treatment facility -an action by patient or a former patient against a health care provider after limitations in this section |
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Termination of Treatment
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-How long did the relationship exist for the condition physician was entitled was ee'd to treat
-was the physician actually attending to the patient -was there more to be done -Schmidt v. Esser - if you can't determine when the actual harm happened, go to the last date of treatment and must bring COA w/i 4 years |
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Single Act Exception
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-Crenshaw
-injury arising from a single act -act complete at a precise time -additional treatment cannot undue the injury -patient is actually aware of the injury and it's relationship to the medical treatment -dude jumped out the window at the crazy ward |
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Meaning of Accrual
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-MacRae
-lump in the leg -at the time the harm is recognizable, accrual starts -additional treatment, additional treatment, additional disability, change in prognosis, not limited to allegations in complaint (medical bills would have been an additional harm) **MN - when the COA can survive (approximation from expert testimony of when recognizable harm should have been seen/likelihood of living v. dying) |
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Fraudulent Concealment
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-Schmucking
-doc intentionally withheld info from patient that they can't reasonably discover on their own with reasonable dilligence |
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Non-Licensed Provider
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-541.05 - 6 years unless ee'd by hospital, then go back to the 4 year
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Statutory Tolling of SOL
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-Minors 541.15
-0-8 = 7+4 -19 end all age -8-15 = before 19 years old **must end at 19 -parents claim is still 4 -Ostrander |
