1. Medical Malpractice and Licensure
Sheldon F. Kurtz

2. The Nature and Extent of Medical Error
How rampant is medical error?
The Harvard Study (180,000 per year)
The 1999 Institute of Medicine Study (100,000 per year)
Three jumbo jets going down every 2 days
Does the data make your nervous about your doctor?
Is there too much medical litigation?
Does the data suggest reasons for physicians to be frustrated over malpractice litigation?
Harvard found too many of the wrong persons recover
Persons with most severe injury undercompensates

3. Saks Study
A negligent doctor who causes injury has a probability of sued sued of 3 out of 100.
A non-negligent doctor has a probability of being sued for a nonnegligent injury of 13 out of 10,000.
Thus, for every malpractice claim in response to a negligent injury there are malpractice victims who bring no suit but there are 4-5 claims brought by non-negligently injured patients.

4. How the Law Effects Quality of Care
Medical malpractice
Licensure
Certification

5. The Donabedian Model To Access Quality Care
Structure
Focus on underlying capacity to deliver care (licensure, brick and mortar)
Process
Studies process through which care delivered (focus on procedure by which health care delivered)
Outcome
Did patient get better when patient should have gotten better
Malpractice begins with outcome but largely looks to Process to find negligence

6. Elements of a Medical Malpractice Case
The Applicable Standard of Care
Ordinary and Prudent Physician would have done under the same or similar circumstances
Breach of the standard of care
Injury and
Proximate Cause between the breach and the injury

7. McCourt v. Abernathy What are the facts of this case?
Failure to properly diagnosis septicemia
Failure to timely order diagnostic tests
Failure to realize seriousness of deteriorating condition
Failure to timely seek appropriate consultation
Patient died
Expert testified that defendant’s conduct was below the standard of care
What does the court hold?
Charge (on page 316) was correct

8. Locke v. Pachtman What are the facts of this case? Broken needle case
Why is expert testimony necessary?
Ordinary juror not equipped by common knowledge or experience to judge skill and competence of a medical service
Fact that defendant’s statement may have suggested defendant erred not controlling because statement not related to the standard of care
How does court distinguish the Orozco case on page 321
Jury’s common knowledge satisfies requirement of breach by doctors who states he cut in the wrong place.
Doctor’s statement about needle not of same effect
Some contrary authority, see note 2, page 326
Liability of resident vs. attending physician
Negligent supervision

9. The Custom-Based Standard of Care
What is the medical custom standard and how does it differ from ordinary negligence law?
Why does the law defer more strongly to professional standards here than elsewhere?
Is the custom standard meaningful or coherent?

10. Summary of Notes—Page 326-332
Error in judgment rule
Standard of care for residents, specialists and consulting and supervising physicians
Availability of punitive damages
Variations in the verbal formulation
Ordinary careful and prudent physician
Reasonably prudent, minimally competent physician
Good medical care
Absence of data to support conclusion of what average or prudent physician would do

11. Variations in the Standard of Care—Jones v. Chidester
Two schools of thought
What constitutes a school?
A “considerable number”
Respected, reputable and reasonable
What factors affect variation in practice?

12. Locality vs National Rule-Chapel v. Allison
What is the locality rule (page 337, 1st paragraph)
National standard
Why have courts abandoned the locality standard—at least for specialists?
Should a specialist in Iowa City and Dubuque be held to the same standard?
Economic constraints
What is the practical effect of one standard over another?

13. Economic Malpractice—Page 349
Does the standard of care fall for municipal hospitals?
Does the standard of care allow for different approaches to the practice of medicine based on paying status?
How does the standard of care fit in with the need for research and experimentation?
Does it penalize the innovator or researcher?
Relationship to informed consent law?
How does the standard of care react to specialization?
Is the standard affected by cost-cutting mechanisms of HMOs

14. Locke v. Pachtman-A Reprise
Plaintiff’s attempt to use res ipsa fails
To succeed, plaintiff must establish that
The event was of a kind that ordinarily would not have occurred absent negligence
The injury must have been caused by an agency with the defendant’s exclusive control
Injury must not have been due to voluntary act or contribution of plaintiff and
Evidence of the true explanation of event must be more readily accessible to defendant than to plaintiff.

15. Notes 371-374-Avoiding Experts
Common knowledge
Jury makes finding based on its own experience and knowledge- Some expert testimony required but jury can fill in gaps from its common knowledge
Res ipsa loquitur
No expert testimony required
Negligence per se
Can actually result in a directed verdict
All of these shift focus from “prudent physician” to what jury thinks is reasonable.

16. Notes 371-374-Avoiding Experts
Res ipsa and multiple defendants
Where there were multiple defendants who were all present in operating room when injury occurred, court shifts burden to defendants to come forward with evidence as to who or who was not responsible

17. Notes 371-374-Avoiding Experts
Legal effect:
Res ipsa case still goes to jury for ultimate decision
Court must instruct jury to find liability against at least one defendant
Creates rebuttable presumption or shifts burden to defendant

18. Helling v. Carey What are the facts of this case
Given that the medical experts agree defendant complied with the standard of care, how can the plaintiff prevail?
What is the potential effect of the holding on the practice of medicine?

19. Sullivan v. O’Connor What are the facts of this case?
Why are courts skeptical about contract claims?
What evidentiary benefits flow to a patient claiming a breach of contract?
How does a contract claim impact on the measure of damages?
How might the contract approach impact on HMOs?

20. Franklin v. Gupta What are the facts of this case?
Was the surgeon personally negligent?
What theories are there to hold surgeon liable for the negligent acts of others?
“Captain of the ship doctrine”
Borrowed servant doctrine (also excuses hospital and shifts liability to surgeon)
Professional corporations

21. Strict Liability
Should there be strict liability in medicine?

22. Institutional Liability
Recall structure of hospital and its relationship to its medical staff
If doctors are uniformly insured, why is there such a desire to sue hospitals?

23. Schloendorff v. Society of New York Hospital
What are the facts of this case?
What defenses are offered by the hospital?
Charitable immunity doctrine
Hospital not responsible for acts of physicians who are not employees of the hospital
Nurse is agent of doctor not hospitals as her services are for docs.
Even if nurse was agent of hospital, she acted reasonably
Nurses don’t question doctors

24. Adamski v. Tacoma General Hospital
What are the fact of this case?
Accepting that the doctor was an independent contractor, what theories does the court suggest for holding the hospital liable?
Nondelegable duty rule
Inherent functions doctrine
Ostensible or apparent agency
Do these theories apply to office-based doctors such as surgeons, internists, etc.

25. Darling v. Charleston Community Memorial Hospital
What are the facts of this case?
What did the court hold?
How does Johnson fit?

26. Johnson v. Misericordia Community Hospital
What are the facts of the case?
Negligent selection vs. Negligent supervision

27. Summary of Notes, Pgs
Direct vs. vicarious liability results in holding that hospital had a duty of care to its patients independent of the duty owed to patients through members of its medical staff.
Direct liability unlike vicarious liability does not require a showing that independent-contractor doctor had either actual or apparent authority

28. Summary of Notes, Pgs
With direct liability comes a new rationale for hospitals to assert more control over their medical staffs

29. Summary of Notes, Pgs
Darling and its progeny identify two types of negligence with respect to which hospital can be held liable for acts of independent-contractor physicians:
Negligent selection
See Johnson case
Negligent retention
Assumes contemporaneous supervision of daily treatment decisions as they are made
Hospital risk management programs are an offshoot of this liability

30. Boyd v. Albert Einstein Medical Center
What are the facts of this case?
What does the court hold?
Facts to establish ostensible agency
Patient paid fees to HMO not doctor
Patient selected doctors from list provided by HMO
HMO screened the primary care providers
HMO providers required to comply with list of rules in HMO contract
HMO primary doctors had a gatekeeping function

31. Wickline v. State What are the facts of this case?
While the court ultimately concluded that the managed care organization did not corrupt the medical judgment, what is the important message of Wickline?

32. Summary of Notes, Pgs
The particular components of a MCO may affect how courts look at them in determining whether to impose liability.
Vicarious liability
Direct liability
In some states HMOs are immune from liability by statute
In Wilson v. Blue Cross of Southern California finding insurer could be liable stated “civil liability for a discharge decision rests solely within the responsibility of a treating physician in all contexts is dicta.”

33. Enterprise Liability

34. Dukes v. US Healthcare, Inc.
What are the facts of this case?
What is ERISA?
What is the significance of preemption?
What issue underlies the question of whether this case can appropriately be removed to a federal court?
What is the issue in this case?

35. Professional Licensure

36. Professional Licensing
What function does licensing serves?
Status
Market exclusion
State sanctioned monopolies
Quality control
Protection of public health
Increase cost of entry

37. Physician Licensure MD DO Board Certification, not required
Distinguish from credentialing

38. State v. Miller What are the facts of this case?
Charged with practicing medicine without a license
Defendant claims he never held himself out as a doctor
He did, however, let customers believe he could diagnose and cure ailments
Routinely prescribed and furnished medicines

39. Unlicensed Practice of Medicine
Criminal
Defining Medical Practice
If you tell me you have a headache and I tell you to take 2 aspirins, am I engaged in the unauthorized practice of medicine?

40. Iowa Code 148.1
For the purpose of this subtitle the following classes of persons shall be deemed to be engaged in the practice of medicine and surgery:  1. Persons who publicly profess to be physicians or surgeons or who publicly profess to assume the duties incident to the practice of medicine or surgery.  2. Persons who prescribe, or prescribe and furnish medicine for human ailments or treat the same by surgery.  3. Persons who act as representatives of any person in doing any of the things mentioned in this section.

41. Unlicensed Practice of Medicine
Is their a constitutional right to provide care?
Are patient’s constitutionally permitted to obtain medical care from anyone, even non-licensed persons?

42. Other Health Care Professionals
Midwifery
Nurses
Physician Assistants
Telemedicine

43. Modi v. West Virginia Board of Medicine
What are the facts of this case?
What issues are raised by the doctor in this appeal of the Board’s action?
What does the court hold?

44. Problem, Page 954