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Model Answers to Mid-Term Exam #1

Question 6: (First Short Essay)

Mr. Straw is upset that Dr. Diehard did not tell him that Diehard had been exposed to SARS four days earlier. Because Diehard performed an invasive procedure on Straw he probably had a duty to obtain not only Straw’s consent, but also his informed consent.

The content of the required disclosure will depend on the benchmark in his state. Most states require the kind of disclosure that is customarily made by members of the profession. We are told that other doctors would not criticize Dr. Diehard’s decision to do the procedure, but we are not told whether they would first inform the patient. Perhaps, their willingness to do the procedure indicates that the risks are too low to warrant disclosure, but we need to confirm that by talking to physicians who could serve as expert witnesses and establish the standard of case.

Other states require disclosure of all facts that a responsible patient would find material. Straw’s chances would be better in those states because members of the public would probably want to know whether their doctor had been exposed to SARS. Even though members of the public may be overreacting to the actual dangers of SARS, their preferences govern in “materiality” states. This case would go to the jury on the issue of materiality.

However, there is a chance that the court will limit the duty of disclosure to material facts about the treatment and not extend it to require the disclosure of personal facts about the doctor. Although a couple of cases have required disclosure of HIV infection and alcoholism, it is still too early to tell whether other courts will follow them. Straw’s case illustrates the magnitude of the burden that would result if courts take this direction. Doctors are exposed to a wide array of infectious illness every week. Would these exposures need to be disclosed to every patient? Furthermore, being exposed is not the same thing as being infected, so this case could go either way.

The final issue is causation. Straw must prove that he suffers from an undisclosed risk. (He does). And he must convince the jury that a reasonable patient would have avoided infection if told about the risk. In many informed consent cases, this element of the case is difficult to prove because the patient needs the surgery and the physician has reasonably recommended it. On our facts, however, the patient had alternatives, like delaying the diagnostic procedure or seeking another doctor, which makes it quite plausible that he would not have contracted SARS if he had been advised of the risks. Still, it will be hard to predict what a reasonable patient would have done until we have more data about the actual risks of transmission under the circumstances of this case.


Question 7: (Second Essay)

Dr. DoRight has good reason to be worried about malpractice liability if he stops using EFM, especially if he works in a state that uses a custom-based standard of care. That is because it is customary in his community to use EFM on all pregnant patients. However, we need more information before we can give him an informed opinion.

Fortunately for him, the standard of care for specialties, like OBs, is usually based on national customs, rather than local ones. It would, thus, be safe for him to stop using EFM if most OBs across the country have already stopped doing so, at least those working under similar circumstances.

If only a minority of OBs have stopped using EFM, he can still seek shelter under the “respectable minority” rule. First, he will need to show that Dr. Strong’s view is “respectable.” The studies will probably suffice. Second, some states also require that a “considerable number” of doctors adhere to that school of thought. We would need to investigate this. We should also tell Dr. DoRight that this issue will go to the jury if the patient offers an expert who denies that the abandonment of EFM is reasonable. Furthermore, the jury may not be sympathetic if it believes that his abandonment of EFM was driven more by financial considerations than by its lack of usefulness.

If DoRight is a general practitioner, rather than a specialist, a few states would impose a national standard of case (including Missouri) but most would judge his decision by comparison to the custom in the same or similar communities. Thus, his liability will depend on the prevalence of Dr. Stone’s views in similar communities. It is possible that other financially strapped hospitals have already stopped using EFM. However, it is not yet clear whether courts will allow cost-consciousness to be one of the factors considered by the jury. On the one hand, courts have said that all patients are owed the same standard of care whether or not they pay for that care. On the other hand, courts also say that local medical circumstances can be taken into account. And it is well known that many hospitals are struggling to stay open. At any rate, defense lawyers may hesitate to offer this defense because it suggests that the standard of care was lowered to increase profits.

In a state that uses the “reasonable physician” standard of care, doctors must do what a reasonable doctor in the same circumstances would have done. The jury decides what ought to be done, not what is being done. Reasonability analysis in tort law traditionally allows a balancing of cost and benefits (i.e. the Hand formula). So Dr. DoRight would be allowed to show that EFM is costly and that it is not very effective at improving the outcomes of low-risk patients. For high-risk patients, however, it does occasionally help, so DoRight would be taking the risk that the jury will conclude that the benefit conferred on the affected families justifies the cost. His safest route would be to do EFM on high-risk patients, and stop only with low-risk patients.

Another option would be to offer EFM, even when he does not recommend it. If he fairly explains his reasoning to his patients, but gives them the final choice, a jury may be more inclined to exonerate him under the respectable minority rule. However, this strategy may not please Dr. Strong because many patients may opt for EFM.

 

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