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Prima Facie Case in Medical Negligence. The Elements. Duty Breech Causation Damages. Duty. What is the legal relationship between the defendant and plaintiff that will support a tort claim?. Treating Physicians. If the doc lays hands on the patient, is there a duty?
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The Elements • Duty • Breech • Causation • Damages
Duty • What is the legal relationship between the defendant and plaintiff that will support a tort claim?
Treating Physicians • If the doc lays hands on the patient, is there a duty? • Can this duty be terminated? • When is a patient abandoned? • How broad is the duty? • Is a specialist consultant responsible for the patient's entire condition or can she rely on the primary physician? • What if you only talk on the phone?
Limited Engagements • Occupational medicine • What is the duty of physicians who do physicals, examinations, and limited treatment for occupational injuries and licensure? • What about ambulatory care centers? • Does the doc you consult for a limited purpose have a duty to inquire into other health issues? • What if they notice something beyond their engagement?
Invisible Physicians • What about radiologists and pathologists who never see the patient, but read tests that affect patient care? • Consultants who do not examine the patient • Physicians who review or supervise the care of other physicians in training programs • Physicians who are the legal supervisors of paramedical personnel
Breech • Breech is of the duty to treat the plaintiff reasonably. • Easy in common knowledge cases • Running a stop sign • Letting your pet alligator run loose • Requires expert testimony in medical cases • What is the standard of care? • Was it breeched?
Standard of Care • The legislature allows physicians and other professionals to set the standard of care for their services • What would the reasonable practitioner do? • Does this mean everyone must do the same thing? • What is a respectable minority view? • What is a quack?
Establishing Standard of Care • Expert testimony • Professional standards documents • Statutes and regulations • Administrative guidelines adopted by the provider or institution • TJ Hooper
Limitations on Expert Testimony • School of practice • Limits of specialty expertise • Example of the locality rule
Breech of Standard of Care • This is usually established at the same time as the testimony on the standard of care • This becomes more complicated if there is a factual dispute about what was done
Causation • The hardest issue in many cases • Two classes of causation • Injuries unrelated to the patient's underlying condition • Injuries related to the underlying condition
Causation - Unrelated Injuries • These are injuries that would not be anticipated in the normal course of the disease or treatment • Foreign body cases • Chipped teeth in anesthesia • Dislocated shoulder from improper placement during surgery • These are the sort of injuries that justify res ipsa loquitur instructions
Causation - Related Injuries • This is what undermines no-fault proposals for medical malpractice compensation • Most people seeking health care have something wrong with them • Most medical treatments have risks, even when done perfectly • Many people will not get better, even with proper treatment • How do you tell what is caused by negligence?
Bad Things to Healthy People • Orthopedic surgeons and middle-aged guys • Anesthesia injuries in elective surgery • Vanity surgery • If there is negligence, then causation is not hard • If there is no negligence, it becomes an informed consent issue
Bad Things to Sick People • The negligence trap • If plaintiff can show that the defendant was negligent, then the jury is not sympathetic to evidence that the negligence did not cause the injury • Most common in obstetrics • Most birth injury cases were not caused by the physician's negligence • Juries like to give money to babies • OBs screw up in other ways
Statistical Causation • Core issue in products liability cases for drugs and other toxic torts • Even worse than birth injuries for jury accuracy • Erin Brockovich syndrome • Really believe in a lie and it becomes true and you become rich • Even Harvard SPH fell for it • Bad for science, more when we do drugs
Damages • See handout • Often part of causation in medical care cases • Key issue in many medical cases is sorting out pre-existing injuries and injuries from the course of the disease from those caused by negligence