Medical Malpractice

1. Medical Malpractice Zach Chambers Advanced Legal Research University of Denver College of Law

2. Introduction Malpractice (mal-prak’ tis)- Mistreatment of a patient through ignorance, carelessness, neglect, or criminal intent Source: Stedman’s Medical Dictionary, 27th edition Zach Chambers University of Denver College of Law

3. Introduction-Strong Medical Malpractice Claims • Dentist’s drill bit dropped down patient’s throat during dental procedure • 13-inch-long surgical instruments left in patients at University of Washington… twice • Patient who went home from hospital chokes to death on latex surgical glove left inside his throat after treatment for asthma and emphysema • Diabetic patient wakes up after operation to find surgeon mistakenly cut off a foot and one toe • Man checks into cancer center for brain surgery and surgeon performs operation… on the wrong side of the brain • Surgical tools are left in approximately 1,500 patients each year in the U.S. Fatter patients are more prone to this due to extra space in body. (Source: USA Today) Zach Chambers University of Denver College of Law

4. Introduction-Proving Medical Malpractice • Duty- Physician/ Patient Relationship • Standard of Care- National Standard/ Local Standard • Breach of Standard of Care- Negligence, Expert Witness Required • Cause of Injuries • Damages Zach Chambers University of Denver College of Law

5. Key Search Terms • Malpractice • Medical Malpractice • Physician • Surgeon • Hospital • Negligence • Medical Negligence • Contributory Negligence • Tort • Patient • Duty • Consent • Inform • Degree of Care/Skill • Liability • Surgical Operation • Medical Expert Zach Chambers University of Denver College of Law

6. Primary Authority • Cases • Statutes • Federal- U.S.C.A. • State- C.R.S. • Administrative Materials • Federal • Regulations- CFR • Agency Websites • State • Regulations- CCR • Agency Websites Zach Chambers University of Denver College of Law

7. Key Numbers from West’s Descriptive Word Index Physicians and Surgeons Negligence or Malpractice Generally, Phys 15(.5)-18.130 Actions for, Generally, Phys 18.1-18.130 Acts or omissions in general, Abandonment of case, Phys 15(6) Diagnosis, Phys 15(7) Disclosure to Patient, Phys 15(8) Care and skill, degree required, Exercising as well as possessing, Phys 15(2) Persons required to exercise care, Phys 15(3) Consent, informed, Disclosure to patient, Phys 15(8) Contributory or Comparative Negligence, Phys 17 Damages, Generally, Phys 18.110 Elements in general, Phys 18.12 Evidence, Admissibility, Phys 18.70 Expert testimony, necessity, Phys 18.80(6.1-9) Hospitals, liability of, Hosp 7, 8 Particular Practitioners, Generally, Phys 15(17.1-24) Parties Liable, Generally, Phys 16 Surgical Operations, Generally, Phys 15(12-15) Primary Authority-Cases Zach Chambers University of Denver College of Law

8. Primary Authority-Federal Statutes • Military Personnel- Defense of Certain Suits Arising Out of Medical Malpractice, 10 U.S.C.A. § 1089 • Malpractice Protection for the Department of State, 22 U.S.C.A. § 2702 • Professional Review, 42 U.S.C.A. § 11111 • Standard for Professional Review Actions, 42 U.S.C.A. § 11112 • Duty of Hospitals to Obtain Information, 42 U.S.C.A. § 11135 • Disclosure and Correction of Information, 42 U.S.C.A. § 11136 • Tort Claims Procedure, 28 U.S.C.A. § 2671 Zach Chambers University of Denver College of Law

9. Primary Authority-State Statutes • Reporting of Medical Malpractice Claims, C.R.S. § 10-1-120 (2003) • Reporting of Medical Malpractice Claims Against Physical Therapists, C.R.S. § 10-1-121 (2003) • Reporting of Medical Malpractice Claims Against Optometrists, C.R.S. § 10-1-125 (2003) • Professional Liability Insurance Required, C.R.S. § 12-33-116.5 (2003) • Qualifications as Expert Witness in Medical Malpractice Actions or Proceedings, C.R.S. § 13-64-401 (2003) • Limitations of Actions- Medical or Health Care, C.R.S. § 13-80-102.5 (2003) Zach Chambers University of Denver College of Law

10. Primary Authority-Federal Administrative Materials • Code of Federal Regulations • Health Care- Department of Health and Human Services • Purpose, 42 C.F.R. § 1003.100 • Definitions, 42 C.F.R. § 1003.101 • Civil Money Penalties, 42 C.F.R. § 1003.102 • National Practitioner Data Bank for Adverse Information on Physicians and Other Health Care Practitioners • Applicability, 45 C.F.R. § 60.3 • Reporting Medical Malpractice Payments, Applicability, 45 C.F.R. § 60.7 • Requesting Information, Applicability, 45 C.F.R. § 60.11 Zach Chambers University of Denver College of Law

11. Primary Authority-Federal Administrative Materials • Agency Websites • Department of Health and Human Services • National Practitioner Data Bank for Adverse Information on Physicians and Other Health Care Practitioners Zach Chambers University of Denver College of Law

12. Primary Authority-State Administrative Materials • Code of Colorado Regulations • Colorado Department of Regulatory Agencies- Division of Insurance • Financial Responsibility Requirements for Health Care Institutions, 3 Colo. Code Regs. 702-2 • Mass Merchandising of Property and Liability Insurance, 3 Colo. Code Regs. 702-5 • Colorado Department of Human Services/ Social Services • Medical Services Board-Medical Assistance Manual, 10 Colo. Code Regs. 2505-10 • Colorado Department of Public Health and Environment • Alcohol and other Drug Abuse Treatment Rules, 6 Colo. Code Regs. 1008-1 Zach Chambers University of Denver College of Law

13. Primary Authority-State Administrative Materials • Agency Websites • Colorado Department of Regulatory Agencies- Division of Insurance • Colorado Department of Human Services/ Social Services • Colorado Department of Public Health and Environment Zach Chambers University of Denver College of Law

14. Frivolous Lawsuits? • A convicted burglar sues the state of New York for $10 million, claiming that poor medical care was the cause for amnesia that made him leave his work release job and forget to return to prison. • Man given 3 months to live by doctors quits job, outlives the prediction and sues doctors for lost earnings. • Man thought he saw demonic 666 sign on his hand while working at construction site, so he removed his hand with a circular saw, then refused to let doctors reattach it. Judge tells the doctors to abide by man’s wishes, man sues doctors for not contacting his parents to overrule the judge’s decision. Zach Chambers University of Denver College of Law

15. Conclusion Advise your clients to count their surgical tools, mark which side of the head to operate on, don’t cut anything off they’re not supposed to, and hold on tightly to their drill bits. Zach Chambers University of Denver College of Law

16. The End Zach Chambers University of Denver College of Law