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Health Care Law & Policy (W2004)
Quiz #2 Answer Key
A.
Multiple Choice
1. THROWN OUT
2. A=4
3. A=3
4. A=1
5. A=2
B-1.
Statute is one of repose because it runs from the “negligent act” rather than
from accrual of cause of action, so time has expired unless tolled:
Possible tolling:
(a.) fraudulent concealment: MD knew and did not tell. If nondisclosure suffices
in this state, statute was tolled until discovery.
(b.) continuing negligence & continuing treatment doctrines do not appear to
apply. Even if Doctor did the curative surgery, this may not be continuous
enough to constitute “continuing treatment.”
(c.) continuing tort doctrine fits perfectly to toll the statute as long as the
sponge remained in patient but few courts use it because it defeats the purpose
of repose.
B-2.
Four conceivable grounds for Hospital liability:
(1.) Negligent credentialing bc allowed “green” doctor in ER without
supervision. Weak Theory.
(2.) Master-servant/respondeat superior turns on the degree of hospital control
over the MD. Probably too few supporting facts here (hospital bills for ER
doctors; probably supplies equipment) and some facts suggest weak control (like
contracting out ER coverage to a physician group.) However, some courts lean
toward vicarious liability because ER coverage is an “inherent function” of a
hospital.
(3.) Ostensible agency traditionally turns on proof that the hospital has
represented that the treating physician (1) is an employee and (2) the patient
has relied on that representation. On our facts, the hospital advertises but
does not mention the ER and we don’t know if it uses language vouching for the
quality of care or taking credit for it’s Mds. It does not provide lab coats or
name tags for the ER doctors. It does bill the patient for MD services, but this
presumably occurs long after treatment. If courts enforced this requirement
strictly, P’s case would be weak. However, the modern trend is to ask whether
the hospital “holds itself out” as a provider. In our case, just having an ER
open to the public for which the hospital (rather than the patient) selects
doctors would probably suffice. Patient must also prove reliance. The strictest
courts require reliance on the representation of employment in the sense that
the patient would have gone elsewhere (which is probably untrue here), but more
commonly courts ask if the services were accepted in the “reasonable belief”
that the MD is an employee (quite possibly here) or if the patient relied on the
skill of the agent (always present in medical cases). That is promising for the
patient. Even more promising is the emerging trend of reformulating the reliance
element into a requirement that the patient have “looked to” the hospital for
care. That is clearly present here, as the patient picked the hospital and the
hospital picked the doctor.
(4) Nondelegable duty: if our state has a statutory requirement that Hospital
maintain and staff an emergency room, then the court might say that Hospital
cannot subcontract away its responsibility for ER quality. But so far only one
state has used this theory.
B-3
Patient will have a problem trying to show that Doctor had a duty to inform her
of an experimental treatment that he did not recommend. Informed consent has its
origins in battery and normally only attaches if the physician actually
prescribes a treatment or invasive diagnostic procedure. California has extended
the duty to include situations in which the patient refuses the procedure
(“informed refusal”) but the facts in our problem would require the court to
take this doctrine one step farther. Courts are unlikely to allow this since the
patient is free to sue for malpractice if the doctor’s failure to offer the
treatment was unreasonable. Here, however, we are told that this theory won’t
fly.
If a court does impose an informed consent duty to disclose available
treatments, then it would also have to decide whether the standard of disclosure
in this jurisdiction (customary or reasonable patient) requires disclosure of
this particular (experimental) treatment. We have no facts about custom, but a
jury might well believe that a reasonable patient would want to know about
experimental treatment and, if the stakes were high enough, would find a way to
raise the $100,000 (thus also showing that informed consent would have led to a
change in the patient’s treatment). Because the treatment is still experimental,
the lost opportunity probably causes only a loss of a chance at recovery.
Patient can make a pretty good policy argument for extending the informed
consent duty to cases like this one. The goal of the doctrine is to empower
patients by reducing the information imbalance and thus give them true autonomy
over their treatment. That goal would be served well here. It could be
accomplished by separating the doctrine from its battery roots and basing it
instead on the fiduciary duty of the physician. Admittedly, however, such a duty
would place an additional burden on physicians, often in cases where patients
would never seek the experimental alternative.
B-4:
Official practice guidelines should serve as a shield because they presumably
represent one proper way to treat a patient. The argument against allowing them
as a sword as well is that doing so would penalize physicians who use other
respectable approaches, would deter innovation, and would bind physicians to
obsolete approaches.
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