Prima Facie Case in Medical Negligence

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Prima Facie Case in Medical Negligence
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The Elements

• Duty
• Breech
• Causation
• Damages

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Duty

• What is the legal relationship between the
  defendant and plaintiff that will support a tort
  claim?

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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?

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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?

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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

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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?

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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?

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Establishing Standard of Care

• Expert testimony
• Professional standards documents
• Statutes and regulations
• Administrative guidelines adopted by the provider
  or institution
• TJ Hooper

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Limitations on Expert Testimony

• School of practice
• Limits of specialty expertise
• Example of the locality rule

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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

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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

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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

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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?

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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

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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

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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

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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