Medical Malpractice and Health Care Torts - …

1 1 Medical Malpractice and HealthCare TortsThree ways to sue Health careproviders Medical battery Professional negligence Informed consent2 Medical battery An intentional tort The elements of battery: Act Intent Causation (actual and proximate) Touching Harmful or offensiveMedical Battery - Example: Ear SurgeryPatient gives permission to surgeon to operate onleft ear. While patient is under anesthetic, surgeondecides to operate on right ear. Right ear is BatteryWhy? Cutting on someone s ear without permissionis battery, even if it helps them. Lack of damagesdoes not invalidate an intentional tort Battery - Example: Emergency Heart SurgeryUnconscious patient arrives in emergency roomneeding open-heart surgery to survive. Physiciansoperate. The surgery is performed incompetently,causing permanent No batteryWhy? The hospital and physicians can prove anaffirmative defense of consent. For a patientincapable of giving or withholding consent, consent isimplied by Battery - Key Points Damages are not necessary to make out acase for battery.

2 Thus, the patient who is notinjured, and is in fact better off because of thetouching, still has a case. Note: A harmful touching for purposes ofbattery is not necessarily one that causes harm. Consent for emergency treatment isimplied by law for public policy Negligence This is a regular Malpractice case againsta physician. The elements of negligence: Duty Breach standard of care is key difference Actual causation Proximate causation DamagesProfessional Negligence - Example: Ear SurgeryPatient gives permission to surgeon to operate onleft ear. While patient is under anesthetic, surgeondecides to operate on right ear. Right ear is No negligenceWhy? No damages. A prima facie case for negligencerequires Negligence - Example: Emergency Heart SurgeryUnconscious patient arrives in emergency roomneeding open-heart surgery to survive. Physiciansoperate. The surgery is performed incompetently,causing permanent NegligenceWhy? The hospital and physicians had a duty toperform the surgery competently and they did not,resulting in damages.

3 Consent is Negligence - Key Points The standard of care is dictated by custom. Good results are not guaranteed. New physicians are judged by the samestandard as experienced physicians. Can result from negligent diagnosis ortreatment. Must cause damages. Many states have statutory reforms Negligence - Standard of care Custom ( accepted practice) is dispositive. Sword and shield Traditional rule: General practitioners standard: Minimally in the community (or a similar one). Specialists standard: Minimally qualified specialists inthe nation. Problem with traditional rule: Difficult to findexperts to testify against neighbor to establishcommunity standards. Trend: Use a national standard for Negligence - Statutory Reforms & Restrictions Caps on pain-and-suffering damages. Threshold determinations of merit by panelor administrative before lawsuit can goforward. ERISA, a federal statute, effectively bars mostlawsuits against insurance companies forwrongful denial of coverage. Damages are limited to cost of denied benefit.

4 Only applies to employer-provided Consent Actions We will discuss these next time.