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20 Cards in this Set

  • Front
  • Back
Rule of Reasonable Care
The duty of care required of professionals is one of reasonableness.

A professional is required to have the skill and learning commonly possessed by members in good standing of that profession.

-Negligence is not necessarily equated with unfavorable outcome.

-Doesn't require that all other professionals would have chosen the same course of action as that decided upon by the defendant. If only one recognized method of treatment is used by persons in good standing in the profession and the defendant chooses another course of action, the choice will likely be considered negligent.
How Negligence Can Occur
1. A professional may lack the requisite training to perform a given task. He may fail to ask for the information necessary to make an informed recommendation to the plaintiff or may fail to refer the plaintiff to a specialist when the situation dictates such a referral.

2. The professional chooses an appropriate course of conduct but fails to use due dilligence and care. Professionals who resort to unorthodox procedures are more likely to be found negligent than those that use more conventional techniques. The degree of innovation considered legally acceptable largely depends on the seriousness of the situation.

3. The professional has failed to keep abreast of new developments in the field.

4. The professional failed to pay attention to clients' complaints and feedback.

5. Physicians who prescribe medications to patients without first examining them.
Ang v. Martin
If a malpractice claim arises out of a criminal case, the plaintiff has the burden of proving that she was actually innocent of the criminal charges that wer filed against her.

-establishes elements of a malpractice claim
Elements of a Malpractice Claim
1. The existence of a professional-client relationship which gives rise to a duty of care on the part of the professional to the client.

2. An act or omission by the professional in breach of the duty of care

3. Damage to the client

4. Proximate causation between the breach of the duty and the damage incurred.
Specialists
-Held to a higher standard of care than generalists

-Must adhere to the standard of the "reasonably careful and prudent specialist" in that field.

-Typically required to adhere to a national standard of care rather than a local one because clients seek out a specialist because they want someone who is aware of advances in the field.

-Attorneys are held to a general standard of care unless they present themselves as certified specialists.
Fiduciary Relationship
Relationship based on trust and confidence that imposes an obligation to act in good faith
Doctrine of Informed Consent
Definition: Knowledgeable consent based on disclosure of relevant facts that allows one to make an informed decision. Requires clients to be given ultimate dominion over their bodies and those events that affect their lives.
Medical Treatment and Informed Consent
-Physician has a duty to warn patients of possible hazards, complications, and expected and unexpected results of treatment. Particularly if a therapy is new or experimental, a physician has a duty to warn the patient that all side effects of the treatment are not completely known.

-Duty to warn increases as probability or severity of risk to patient increases.

-A patient who is unaware of the inherent risk of a proposed procedure cannot voluntarily consent to that procedure.

-A physician is obligated to advise a patient about existing alternative treatments unless the physician doesn't think that the alternative would work in a particular patient's case

-In emergency situations, when a plaintiff is unconscious or so ill that he is unable to comprehend what is being said, the physician has a right to render treatment w/o informing the patient of the risks involved.

-If a risk is highly improbable and if advising the patient of the risk would, in the physician's opinion, induce the patient to forego necessary treatment or would severely reduce the efficacy of such treatment, the physician is not required to disclose this information. If the probability of the risk is statistically high or the consequence is extremely severe, the patient should be informed regardless of the effect it might have in his morale.

-In determining what should and should not be disclosed to a patient, courts use 1 of 2 standards: patient standard or professional standard
Patient Standard
What a patient in that position would reasonably need to know to make an informed decision or whether a reasonable patient in that situation would have submitted to the procedure had she been advised of the risks involved. or
Professional Standard
A physician must disclose only those risks and alternatives that the reasonable medical practitioner in the community would disclose under similar circumstances.

-Majority position

-Considered a paternalistic standard that leaves the choice to the medical community rather than the patient whose life is most intimately affected by the choice made, by some
Battery v. Negligence
-Plaintiffs alleging lack of consent can sue on a theory of battery or negligence

Battery: If a patient is in total ignorance of what is to be done or if the physician obtains consent for one procedure and performs another.

-Alleged, lay-witness testimony is sufficient.

-Longer statute of limitations

Negligence: The patient is aware of the procedure and signs a consent form but does not clearly understand some of the risks inherent in the procedure.

-More typical situation and has displaced battery as a basis for liability for the most part

-Expert witnesses, that are usually in the same area of practice and are familar with the procedures or techniques used in the case although they need not follow the same practices, are required to testify to the standard of care and the fact that it was breached.

-Primary issue is whether the risks that were not disclosed were material risks. Courts consider severity of consequences and the probability of their occurrence, and the feasibility of any alternatives in determining this.

-Plaintiff is required to prove that the outcome was a foreseable risk and not an unpredictable consequence

-Plaintiff is required to prove that his injuries more probably than not resulted from the negligence of the professional
Defenses to Professional Negligence
1. Contributory Negligence

2. Assumption of Risk

3. Emergency Situation
Contributory Negligence
The defendant must show that the plaintiff's negligence was concurrent with his own and did not merely add to the effects of the defendant's negligence.

If a plaintiff's negligence merely added to the effects of the defendant's negligence, the defendant will not be relieved of liability but the plaintiff's damages may be reduced

-Typically, the defendant argues that the client refused to cooperate with her instructions or was otherwise uncooperative
Assumption of Risk
A patient who understands the risk involved in treatment and knowingly consents to that treatment is said to have assumed the risk.

Inapplicable if the risks are not clearly explained or if plaintiff doesn't clearly understand them

-No client can assume the risk of negligent care
Emergency Situations
-Applicable in medical situations in which death is imminent and treatment is absolutely necessary for the plaintiff's protection

-Inapplicable if the emergency is caused by the physician's negligence. Physician bears the burden of proving that an emergency existed and that it was not due to any fault of his.

-Treatment during a life-and-death emergency is not required to be of the same level of care as that provided under less stressful circumstances. Standard of care depends on the circumstances in which the emergency occurs. Left to the jury to determine whether physician's conduct conformed to the expectations for a reasonable physician working under those circumstances.
Maintaining Adequate Records
-Maintaining adequate client records may be critically important in proving that no negligence occurred because passage of time weakens memories so the completion of such records is not a frivolous expenditure of valuable time

-The physical client record is the property of the health care provider, but the content of the record is considered the property of the patient.
-If a patient will waive the physician-client privilege, most state laws require that the record be released to her.

-If a plaintiff's medical problems are the subject of litigation, all relevant medical records are subject to subpoena by the defendant.
Underlying Causes of Professional Negligence Suits
-Professional negligence claims and the cost of malpractice insurance premiums are on the risk, especially involving attorneys

-Annual malpractice claims for doctors are on par w/ that for attorneys, but the per-capita amount paid for claims is significantly higher for lawyers b/c at least 40% of U.S. lawyers are uninsured

-Legal malpractice claims cost more than what is collected annually from punitive and compensatory damages awarded by juries nationwide

-Only 10% of legal malpractice ever becomes an insurance claim

-The frequency and severity of claims increase when there are economic downturns

-Nearly 68% of claims filed against lawyers resulted in no payment at all to the claimaint and less than 1% of cases resulted in judgment for the plaintiff.

-The average lawyer has 3 or more claims filed against her during her career.

-Litigators are most likely to be sued, especially personal injury litigators

-The greatest number of errors committed by litigators are administrative errors, especially failure to file actions in a timely manner b/c of a missed statute of limitations

-Experienced lawyers account for disproportionate number of claims

-Most malpractice claims are due to poor client relations because of a lack of communication

-Model Rules of Professional Conduct require clients to be kept reasonable informed about the status of the case and lawyers to promptly respond to reasonable requests for information

-Professionals can avoid this by talking openly w/ clients about their problems, listening to their complaints and behaving in a manner that indicates they respect their clients.

-Another explanation for increase in claims is unreasonable expectations of plaintiffs based on what they hear from friends and what they learn from the media
How to Prevent Professional Negligence Suits
1. Maintain a reasonable workload

2. Calendar deadlines and maintain a backup calendar

3. Maintain client confidences

3. Be alert to client dissatisfaction

4. Keep clients well informed

5. Return client phone calls and respond to client correspondence in a timely fashion

6. Keep client files well organized

7. Use management techniques and devices that enhance efficiency

8. Allocate the time necessary to complete tasks completely.

9. Bill periodically and in detail; monitor accounts receivable on a regular basis
Medical Malpractice Crisis
B/c of perceived medical malpractice crisis, most legislatures have passed statutes that affect medical malpractice litigation.

-Crisis arose b/c of increase in litigation since 1960s, the size of judgments sometimes awarded, and the concommitant increase in medical malpractice insurance.

-Claims have leveled off since 1985. Some attribute this to high procedural cost of filing a med. malpractice claim.

Legislation has modified the informed-consent doctrine, the burden of proof, evidentiary rules, statutes of limitation, the awarding of punitive damages and the setting of the standard of care.

-Some statutes limiting the damages recovered in med. malpractice cases have been challenged as a denial of equal protection and found invalid.

-Some states require pretrial review panels to hear med. malpractice claims and find on the issues of liability, damages or both before proceeding to trial. Some of these provisions have been attacked as a denial of the constitutional right of access to the courts.
Practice Guidelines
Legislation enacted by a few states that defines the standard of care to be used in certain clinical situations

-Protects physicians from malpractice suits and discourages physicans from practicing defensive medicine.

-Doctors need only demonstrate that they have complied w/ the guidelines to avoid litigation

-How much weight is given to guidelines at trial is up to the trier of fact.