Health Law

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Health Law
2012-04-29 15:13:42
Health Law

Health Law
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  1. Duty to Treat: Doctors
    • Doctors have no duty to treat (unless they're the ones who caused the person's need for treatment)
    • NB: Comes from common law duty to rescue
    • NB: Many states have Good Samaritan statutes to reverse this in ltd. circumstances
  2. Duty to Treat: Private hospitals
    • Absent an emergency, private hosps don't have to treat
    • NB: In an emergency, even private hospitals have a duty to treat when:
    • 1. It maintains and ER; or
    • 2. Is required by law to have one
  3. Duty to treat: Doctors in hosps
    • Held to a different standard than non-hosp docs, especially in emergencies
    • - Doc develops a p/p quickly; patient could have gone elsewhere if they knew they would have been rejected
  4. Const. right to medical treatment
    • None.
    • NB: Wards of the state do have right to health care since the state is their caretaker (e.g., prisoners)
  5. Spells of illness doctrine
    Once treatment of an illness ends, a new relationship must be formed to invoke liability
  6. Duty to treath: Creation by K
    • Duty may exist by K when:
    • 1. K'd w/ hosp. (e.g., on call doc)
    • 2. HMO or other insurer
  7. Duty to treat: Limitations
    • Hosp's may limit duty to treat when:
    • 1. specialty hosp.
    • 2. "No room at the inn."
    • NB: Some courts treat hosps as "quasi-public institutions" w/ duty to treat
  8. "Patient dumping"
    • Can't do it
    • E.g., Burditt case: can't send hypertensive woman in labor to a hosp. 170 miles away because you don't want to take her
  9. EMTALA hosp. treatment requirements
    • 1. Screening:
    • - examine and give initial diagnosis (only must be w/in capability of hosp)
    • 2. Stabilitzation/transfer
    • - if transfer fails, hosp. must still treat
  10. Providing care in futile cases
    Not required
  11. Avoiding EMTALA by refusing to let an ambulance come to its ER
    • Not allowed, unless, mayne:
    • 1. the hosp. owns the ambulatnce
    • 2. the hosp. is full
  12. EMTALA
    • Created to prevent patient dumping
    • NB: Duty to treat begins at ER door (thus, if full, hosp. can turn people away)
  13. Failrure to treat when duty exists may result in two CoAs
    • 1. EMTALA violation
    • 2. Malpractice claims
  14. Nondiscrimination principle
    Can't reject treating people based upon race, sex, religion, disability, etc.
  15. Rehabilitation Act
    • Can't requires hosp. to provide surgery against parents' decision; OR
    • to require hosp. to petition the state to override parents' decisoin; too onerous
    • Can't disciminate against a patient because of disability
    • E.g., Univ. Hosp.: Parents can refuse treatment on their child's behalf; act doesn't apply to medical decisions; disc. only prohibited where handicap is unrelated to the svcs in question
  16. Reproduction as a major life activity
    It is. It's a protected right.
  17. HIV and protection
    HIV is a physical impairment (it affects your ability to reproduce) and, as such, you're protected by the ADA
  18. HIV: Docs treating/not treating
    • Physician can take HIV disability into acct when they refuse treatment, but they must make reasonable accommodations (but they can charge for the extra accommodations)
    • Physicians cannot refuse or alter care of an HIV patient
  19. Doc policies that might contravene state law
    • Docs can often have their own policies and, so long as they're open with them, they'll be okay
    • E.g., doc who had policy that he'd sterilize poor women after their 3d child; if they didn't like it, they could go elsewhere
    • NB: Just because a doc is at a state hosp. doesn't mean he's acting under color of state law
  20. Adams: Ectopic pregnancy advice; doc said discomfort was normal; patient died
    Once a doc gives advice to a patient, a p/p is formed (Doc should just say he won't give advice)
  21. Consensual transaction
    • Patient knowingly seeks doc's assistance and the doc knowingly gives assistance to the patient
    • E.g., no p/p formed when doc told girl he would see her the next morning because he didn't give advice (he merely told her to do what another doc had told her to do), he just told her when to come see him
  22. p/p and consultion docts
    No p/p; merely a professional courtesy
  23. p/p development in relationship to time of making appointment
    • p/p doesn't autmaticall occur when an appointment is made
    • E.g., doc could refuse to treat woman who brough her do to an appointment; he hadn't started diagnosing her or treating her
  24. p/p and curbside consults
    p/p may result from a curbside, depending upon the involvement of the consulation
  25. p/p and employment/ins. physicals
    • No p/p, except:
    • 1. findings posing an immediate danger;
    • 2. examiner volunteers treatment advice
  26. Physician duties to 3d parties
    • Some states require doc to inform patient if patient's treatment decisions may affect 3d party
    • E.g.,
    • Cal. says there is a duty
    • Tex. says no duty to 3d party
  27. Exculpatory clauses from liability; factors to determine if it'll stand
    • 1. is institution subject to public regulation?
    • 2. is the svc in question a crucial necessity?
    • 3. is the hosp. performing the service on all members of the public who qualify?
    • 4. does the hosp. have advantage in bargaining? and
    • 5. is signee placed in control of the negligent party?
    • Takeaway: Hosps can limit their liability to patients, but it's difficult
  28. Completion of treatment once teratment begins
    • Once treatment starts, docs hvae to see it through
    • NB: You can limit treatments by K, but once you start, you can't stop
  29. Abandonment elements
    • 1. p/p exists
    • 2. Refuse care
    • 3. At a critical time of illness; and
    • 4. was not given notice to find other treatment
  30. Ending p/p relationship
    • Docs can end relationship w/ patient, but they must be explicit about it
    • E.g., Payton: doc's patient wouldn't follow instructions and, after many chances, ended treatment w/ her
  31. Fiduciary nature of p/p
    Docs have an extraordinary obligation to look out for their patient
  32. Confidentiality v. privacy
    • Priv. = keeping something from someone else (involves you and everyone else)
    • Confidentiality = keeping something you were told from everyone else (involves you and another, and then everyone else)
  33. Reason for doc/patient confidentility
    Encourage people to go to doc
  34. Basis for duty to maintain confidentiality
    • 1. K
    • 2. Tort
    • 3. Fiduciary duty
    • 4. Fraud/misrep
    • 5. Statute
  35. Implied terms of p/p
    • 1. Good care
    • 2. Enough info to give adequate consent
    • 3. Confidentiality
    • 4. Loyalty
    • E.g., A tells Doc she has drug problem. If he tells, she has basis for suit
  36. Breach of confidentility w/o giving names
    Possible. Just telling confidential info about someone is enough to invoke breach
  37. Public health concerns and confidentiality
    • Some public health concerns = basis for breaching confidentiality
    • E.g., Rocky Mountain Spotted Fever case: Doc may be negligent for duty owed to non-patient if injuies suffered and the manner in which they occurred were reasonably foreseeable
    • E.g., in Cal., if there's an imminent risk to an ID-able person, there's a duty to inform
    • E.g., doc must warn DPS about people w/ epilepsy
  38. Mandatory disclosure of confid. info when:
    • 1. Abused child, adult, or disabled person
    • 2. Trauma likely resulting from crimes (e.g., gun shot)
    • 3. STDs, including HIV
    • 4. Gun shots
  39. Mandatory disclosure of confid. info: who to disclose to
    • 1. Law enforcement
    • 2. Public health authorities
  40. Tex. Confid. Law
    • Communications between mental-health pros and patients/clients is confidential for 100 years
    • Exception: May disclose when ther eis a probability of imminent phyiscaly injury to an ID-able person
  41. Informed consent, generally
    • Gives patient more power in understanding what's happening.
    • Not a form, it's a process
  42. Informed consent; why isn't it covered by battery tort?
    Batter could prvent people from undergoing unwanted medical proceudres, but IC makes there a duty to inform patient about a medical procedure (before performing it with consent)
  43. IC: fxns
    • 1. indiv. autonomy
    • 2. protect status as human being
    • 3. avoid faur and duress
    • 4. encourage docs to carefully consider decisions
    • 5. foster rational patient decision making
    • 6. involve public in medicine
  44. Variations of IC; competing disclosure stds
    • 1. physician-based std.
    • 2. reasonable patient std.
    • 3. particular patient std.
    • 4. resonable physician std.
    • 5. subj. patient std.
  45. IC: Physician based disclosure std.
    • Disclose what a reasonable, minimally competent physician would have disclosed
    • NB: Requires physicians to testify against each other; docts are wont to do this
  46. IC: Reasonable patient disclosure std.
    • Disclose what a reasonable patient would have considered material under the present cifcumstances
    • Should disclose:
    • 1. diagnosis;
    • 2. nature and purpose of treatment;
    • 3. risks (can omit remote risks)
    • 4. probability of success
    • 5. alternative treatments
    • 6. prognosis if not treatment is given

  47. IC: Subjective patient std.
    • A patient can be as unreasonable as they want; they can prove causation by saying, "I wouldn't have consented if I had known X."
    • - No expert opinion, just witness credibility
  48. IC: What must be divulged?
    All risks protentially affecting the decision must be unmasked
  49. IC: Reasonable patient disclsure std.: probability of success disclosuer
    Physician must disclose national success rate and his own success rate
  50. Texas Safe Harbor for Physicians
    Medical Disclosure Panel determines what should be disclosed in certain types of procedures
  51. Limiting liability for failure to disclose
    Consent is not a form, it's a process––can't limit liability through very broad, general form
  52. Does not require disclosure:
    • 1. Common knowledge (e.g., tongue depressors make you gag)
    • 2. Patient knowledge
    • 3. Safe harbors (e.g., 100 yeras, anything can be disclosed)
    • 4. Emergencies (only if a substitute decision maker is not available)
    • 5. Therapeutic privilege (disclosure would foreclose rational decision or pose psychological damage)
    • 6. Waiver
    • 7. Public health (e.g., swine flu)
    • 8. Conscience clauses (e.g., won't perform an abortion)
  53. Therapeutic privilege
    • Docs don't have to disclose things that would harm their patient mentally
    • NB: Doc mus tprove a substantial certainty to himself that it would do more dmg. if disclosed than remaining undisclosed
  54. Disclosure of financial interest
    Doc mest tell if he has a financial interst in your body parts; even more, he must diclose anything that might affect decisions
  55. Disclosure of personal interest other than health of the patient
    Doc must disclose all facts--research or economic--that may affect his medical jgmt
  56. Researcher duty of I.C.
    Researcher's (not doc w/ p/p) duty is in the realm of effective IC, not malpractice
  57. Fraud and p/p situations
    Fraud shoudln't be extended "in this doctor-patient conext that regularly would admit the possibility of punitive damages and that would circumvent the requirements for proof of both causeation and damages imposed in a traditional IC setting
  58. Batter and nondisclosure
    • Batter is only for unconsented touching; if patient consented to touching (even if they weren't completely informed), they have no CoA.
    • NB: Ghost surgery may result in battery (allowing diff. doc you didn't consent to perform surgery)
  59. Elements of breach of IC
    • Must prove:
    • 1. Misrepresentations were made;
    • 2. Mistreps caused patient to undergo procedure he wouldn't have otherwise;
    • 3. Would a reasonably prudent person ahve no consented to the procedure?
  60. IC in human experimentation: Federal regs
    • Part A. Common rule (IC applied to everyone)
    • Part B. Pregnant women and fetuses have diff. rules
    • Part C. Prisoners must have reps on review board
    • Pard D. Children are in a separate category as vulnerable individals who can't make their own decision; cannot be subject to any research that has anything more than minimal risk
  61. IRB
    Board composed of people who are well-versed in legal and ethics of certain guidelines who help medical providers and families make difficult decisions
  62. Therapeutic v. Nontherapeutic research
    • Therapeutic: e.g., which of these drugs have a better benefit to a child's earache?
    • Nontherapeutic: e.g., biobank a blood sample to make it a portion of data meant to cure some malady
  63. Duty nontherapeutic researchers owe subjects
    • Arises from K (can't do things you didn't say you would do)
    • Federal regs also add things that must be done when dealing w/ children
  64. consent to place children in nontherapeutic research
    Parents cannot consent if there "any risk" of injury to the health of the child subject
  65. What is "any risk" in regard to nontherapeutic research?
    Hard to tell; usually judged by a jury
  66. Researcher fiduciary relationship w/ subjects
    • Researchers do have a fiduciary relationship; the have to disclose to children that they could be engaging in dangerous activities
    • E.g., children living in leaded homes and affirmatively attempting to get children into dangerous situations
  67. Emergency reseearch
    • FDA allows emergency research on non-consenting patients in certain circumstances
    • E.g., power goes out at a hosp. during a hurricane; all things hosp. staff did to treat was experimental
  68. Causes of MedMal errors
    • 1. Docs think of systematic errors, not personal errors (e.g., mislabelling x-ray and causing doc to intubate the wrong lung)
    • 2. Not following signs
    • 3. Failing to switch from auto mode to problem solving mode when a problem occurs
  69. Elements of a medmal case
    • 1. Ordinary and prudent physician would have done under the same or similar circumstances;
    • 2. Breach of std. of care;
    • 3. Injury; and
    • 4. Proximate cause between breach and injury
  70. Proper std. for measureing physican's negligence
    Degree of skill and care that physician must use in diagnosing a condition is that which would be exercised by cometent practiontioners in the d's field of medicine
  71. Expert testimony and std. of care
    • Experts are often needed to tell the appropriate std. of care; if P can't prove a std. of care that was breached, he doesn't have a cause
    • E.g., broken needle case: needles require sophistication to see if a std. was breached
  72. Prima facie, Orozco breach
    • If doctor behaves in such a way so as to obviously breach std. of care, experts aren't needed (admission against interest)
    • E.g., Orozco: Doc said, "oops. I cut in the wrong place" and patient's testicle atrophied; it's w/in provenance of jury to know that saying oops and then atrophying testicles is outside of the std. of care.
  73. Apology admissibility in medmal
    Many states do not allow apologies to be entered as ev. (want to encourage apologies; good public policy)
  74. Texas Apology Admissibility
    Not as broad as some states; only can't allow anything that is an expression of sympathy
  75. Custom-based std. of care
    • "What is the customary treatment in this field of medicine, for this procedure, in the same or similar circumstances?"
    • Local variations: What do docs in that locale do?
    • National variations: Looks to entire US (this is used more widely)
    • NB: National test still requires same or similar circumsances analysis; can't expect Boondocks, WI to have same care as Johns Hopkins.
  76. Experimentation in surgery: 2 schools of thought
    • 1. Considerable number (quantity): 1000 docs say, "we do it this way."
    • 2. Respected, reputable, and reasonable (respectable minority): Several well-respected docs who know what they're talking about do it this way
    • Court splits:
    • Some courts (like Chidester) say it must be quantity and quality
    • Tex. and other cts would probably fly w/ respected minority
    • NB: It's very difficult to determine what a "respectable" physician would do
  77. Clinical equipoise
    The idea that there can be real, genuine differences of opinion on how to do things (e.g., avoid unnecessary surgery; remove tonsil early)
  78. Locality v. National Rule
    • Locality: What would similarly situated docs in your locality do and be able to do? (including economic constraints)
    • National: What would similarly situaiton docs in the US do and be able to do?
  79. Error in jgmt rule
    If there is a reasonable error in jgmt tat doesn't show lack of skill or attention, it doesn't invoke liability.
  80. Std. of care for residents, specialists, consultants, and supervising physicians
    • What would an X doc in a similar sitch do?
    • NB: Consultatns most likely don't have p/p and, thus, no liability
    • NB: Supervising physician may have some liability due to his responsibility to oversee what thet residents are doing
  81. Clinical practice guidelines
    Guidelines made by reputable orgs giving recommendations as to how to treat a sitch (e.g., Am. Council of Radiologists say, "Only use Low Osmolarity Contrast Media.")
  82. Tex. Factorsfor threshold determination of admissibility of expert testimony
    • 1. Extent of testing of theory;
    • 2. Extent to which technique relies upon subj. interpretation of expert;
    • 3. Peer review;
    • 4. Technique's rate of error;
    • 5. Underlying theory is generally accepted as valid; and
    • 6. Non-judicial uses that have been made of theory or technique
  83. Example of qualified expert witness for medical opinions
    • 1. MD
    • 2. Practicing at time of test
    • 3. has knowledge of accepted stds of medical care
    • 4. is qualitified on the basis of training or experience
  84. Questioning payment info of expert
    • Allowed to investigate bias
    • Takeaway: Courts don't like pro expert witnesses
  85. Allowing clinical practice guidelines in as expert testimony
    Often allowed; not looking at what the expert says, looking at evidence from across the county as put forth by a reputable organization
  86. Expert testimony based upon hearsay sources
    When experts use several hearsay soruces, he must give his opinion based upon those sources
  87. Ways to avoid having to use experts
    • 1. Common knowledge; info w/in the provenance of the jury;
    • 2. Res ipsa (and w/ multiple Ds, turns them against each other)
    • 3. Negligence per se
    • Legal effect:
    • Res ipsa goes to jury; ct. must instruct jury to find liablity against at least one D; creates rebuttable presumptions
  88. To succeed on a res ipsa claim
    • 1. Event must be something that doesn't occur w/o neg.
    • 2. must be caused by instrument exclusively in control of D
    • 3. must not have been due to any voluntary axn. or contribution of P
    • 4. Ev. of the true explanation of the even must be more readily accessible to D than P
    • E.g., Helling failed because expert said that needles don't break w/o neg. but also that they break all the time
  89. Technological imperative
    If you make it, they'll use it
  90. Recovery on medical maladies by breach of K
    • Possible.
    • Elements:
    • 1. Expectancy (what was expected, what was obtained)
    • 2. Reliance (e.g., told it would take two surgeries, had three)
    • NB: damages not confined to out of pocket expenses! Can include pain and suffering
  91. Captain of the ship doctrine
    • The surgeon runs the O.R. and everyone reports to him, thus, he is liable if something goes wrong
    • Not widely followed. Employees in the O.R. are usu. hosp. employees, not the surgeon's. Specialization in medicine requires departure from this Doctrine.
  92. Borrowed Servant Rule
    • A surgeon has exercised the right ot control the details of another person's work inthe O.R.; send to jury
    • More acceptable than Captain of the Ship Doctrine
  93. Strict liability for medmal
    Choosing between a doc and a patient seems to lead to strict liability, even when docs take all reasonable precautions
  94. Alternatives for strict liability
    • E.g., no-fault vaccination recompense; ifa vaccination causes problems, there is a set amt. to recovery
    • E.g., New Zealand: compensation scheme. Wrong organ worked on = $X, etc.
  95. Products liability, generally
    Makes mfgs, distributors, etc. in the chain of distribution liable for defects in a product, irrespective of fault
  96. Comment k, test for pharmaceutical drugs
    • Unavoidably unsafe products. Seller of unavoidably unsafe products, when properly prepared and marketed, is not to be liable for unfortunate consequences attending their usage
    • Takeaway: A failure to warn test
  97. Kearl balancing test
    • 1. How desireable is the product?
    • 2. How substantial is the risk posed by the product?
    • 3. Does the interest in availability outweigh the interst in promoting enhanced accountability through liability?
  98. Difference between Comment k and Kearl tests
    Kearl leaves a ton of discrection to the judge. Comment k says, "if mfg. does x, they aren't liable."
  99. No-fault compensation for vaccine liability
    • $250K cap if P can show causation
    • NB:State mandates vaccinations, but then limits recovery
  100. But-for test
    But for the physician's neg., the patient would have had a better outcome
  101. Substantial factor test in medmal
    When it can't be determined which of two factors caused a har (and both could have indep. caused the harm), causation is met (and may lead to joint/several liability)
  102. Proximate cause
    Was the injury foreseeable from D's breach? Was the incident foreseeable?
  103. Foreseeability alternatives
    • 1. Directness
    • 2. Unforeseeable manner, but foreseeable results
    • 3. Unforeseeable plaintiff, but foreseeable harm
  104. Lost chance, elements
    • 1. Duty: Who? Why?
    • 2. Breach: Eggshell?
    • 3. Cause in fact: Substantial factor? Lost chance?
    • 4. Proximate cause: What is foreseeable, is it enough?
    • 5. Injury: Was there one?
  105. Lost chance, generally
    Can't put value on human life, so, "no one can say that the chance of prolonging one's life or decreasing suffering is valueless."
  106. Loss of Chance, Texas
    Recovery for loss of chance requires proof that, at the time of D's neg., there was more than a 50% chance the claimed injuries would have occurred w/o the D's neg.
  107. Stat. of Limitations v. Stat. of Repose
    • SoL:
    • Texas: 2 years from discovery/event, generally
    • SoR:
    • It doesn't matter when injury was discovered; the claim is gone after x years (e.g., Tex. has 10 year stat. of repose for medmal claims)
  108. SoL and continuous course of treatment
    • The entire continuous course of treatment must be negligent as opposed to a mere continuouse course of treatment that had isolated incidents of neg.
    • - SoL starts to toll on last day of neg. treatment
    • - Change of doctors ends continuity
  109. Covenant not to sue, aff. def.
    Only allowed in medical situations when they are clear and unequivocal
  110. Assumption of risk, aff def.
    • Patients have autonomy to make their own medical choices--to avoid or under go treatment--but they may have to pay for those choices
    • - Send to jury
  111. Good Samaritan statutes
    • Good faith attempts to administer care in emergencies are not a basis for liability for civil damages for an act performed during the emergency, unles the act is willfully or wantonly neg.
    • NB: Only applies to emergencies when doc is not working for hosp at the time (off duty)
    • NB: Overrides common law rescue doctrine
  112. Employers binding 3d party employees
    • An agent or other fiduciary who contracts for medical treatment on behalf of his beneficiary retains the authority to enter into anagreement providing for arbitration of claims for medmal
    • E.g., Hosp. employee ins. case: Employer gave a choice of many plans, some of which didn't have arbitration provisions
  113. Compelle arbitration
    Varies from state to state as to the system/claims that fall under compelled arbitration; but it's allowed generally (states don't expressly say can/can't do it)
  114. "Lost years" damages
    Compensable. Funds decednet would have earned had the medmal procedures not killed him
  115. "Save cost" damage remediation
    Allowed (must be proven and asked for)
  116. Std. of review for noneconomic damages
    Rational basis; BUT, you don't have a const. right to your full award
  117. Reittitur
    Court can lower nonecomonic damages
  118. Wrongful birth
    Child born w/ some abnormality; parents claim that, if told, they would have aborted
  119. Wrongful life
    Child's claim that he should never had been born. (cts don't usually allow this type of claim)
  120. Collateral source rule
    Don't take into acct. a person's insurance when giving damages
  121. Tex. "actually incurred" damages
    Tex. only allows compensation for medical expenses actually incurred (e.g., ins. contracts w/ hosp. for cheaper services; you're only compensated at the cheaper level, not the status quo cost)
  122. How to drop cases in re: settlements
    • 1. Tell client you're only working for a settlement;
    • 2. If filed suit, get judge's permisison to w/draw from case
  123. "Deemed expedient" ins. claims and good faith dealing
    • Bad faith settlements by ins. cos are not okay; policy holder can have CoA against ins. co. for settling too low
    • NB: Even if policy holder agrees to "Deemed Expedient" clause, the ins. co still has to deal in good faith (to not require this could ruin doc's reputations, etc)
  124. National Practitioner Data Bank
    Improves medicine quality thru peer review and reporting; only accessible by lawyers who've filed suit and hosps.
  125. Institutional liability, generally
    • Hosp. may be liable because:
    • 1. It credentials staff;
    • 2. It is the traditional place gone to for treatment
  126. Schloendorff: hosp. liability, old regime
    • Docs were indep Ks, no hosp. liability
    • Not followed much anymore
  127. Ostensible agency
    • If you hold someone out as your agent, and a 3d party justifiably relies upon that rep, you can be liable
    • E.g., billing patient on hosp. stationary, etc.
  128. Ostensible agency, test
    • Does it appear that the employee works for the hosp?
    • "If if looks like a duck..."
  129. Hard agency
    Respondeat superior (hops. has actual agency over doc)
  130. Inherent fxn and institutional liability
    • Can't perform a fxn w/o this agent
    • E.g., Beeck: Anesthesiology
  131. National reasonable hosp. std.
    Hosps are held to a national std; many national orgs can accredit hosps.
  132. Hosp. stepts to avoid liability for neg. hiring/supervision
    • 1. Verify practitioner's statements
    • 2. solicit info from applicant's peers; (doc input)
    • 3. determine if applicant is currently licensed to practice in the state; and
    • 4. inquire whether the applicant has been involved in any adverse medmal axn or has had med. org. memberships or privileges taken away
  133. Things hosps can't delegate
    • 1. Duty (investigate credentials)
    • 2. Breach (didn't investigate)
    • 3. Causation (but for procedure, patient would have been okay)
    • 4. Damages (patient lost a leg, etc.)
  134. Vicarious hosp. liability
    Hosp. owes duty of care to its patients beyond the duty staff owes patients
  135. Direct hosp. liability
    • Unlike vicarious liability, does not require a showing that the indep L doc had either actual or apparent authority
    • - Gives reason for hosp. to assert themselves more in a hosps innerworkings
  136. Two types of hosp. neg.
    • 1. Neg. selection (Johnson: severed femoral nerve because he was a bad doc case)
    • 2. Neg. retention: Assumes contemporaneous supervision of daily treatment decisions as they are made
  137. HMO
    • Controls prices by limiting choice in providers, procedures, etc. (referrals from gen. prac. to specialists, etc.)
    • Only pay for medical necessities
  138. HMO capitation
    Docs make money on the patients they see
  139. HMO risk pool
    If doc has a patient who needs to see a specialist, the money will go to risk pool; if doc never refers to a specialist, (ostensibly because he keeps his patients healthy), the leftovers go to the doc
  140. Ostensible agency of HMOs
    • 1. Patient paid fees to HMO, not doc
    • 2. Patient selected doc. from list provided by HMO
    • 3. HMO screens primary care providers
    • 4. HMO providers were required to comply w/ list of rules of HMO
    • 5. HMO primary docs had a gatekeeping fxn.
    • Takeaway: Gps can be held liable for others' care because they made them look like they were providing the care
  141. HMO and doc advocacy
    • Docs must now advocate for their patients against the HMO
    • E.g., Wickline: HMO didn't pay for extra days for patient to rehab because docs didn't petition HMO to do so; patient died. Docs' fault (but no suit against them because P waived claims in return for doc testimony against HMO)
  142. HMO immunity
    Some states grant the immunity by statute
  143. Reform: Limits on medmal damages
    Do not violate const. so long as there is a rational relation to a state's legis. purpose
  144. Medical capacity v. legal capacity
    • Medical capacity:
    • Ability to:
    • 1. state a choise;
    • 2. understand relevant info;
    • 3. appreciate the nature of one's own sitch;
    • 4. reason w/ the info given
    • Legal capacity: You understand the nature and results of your decisions and can accept the consequences
  145. Principles of clinical ethics
    • 1. Autonomy/respect for persons
    • 2. Benificence
    • 3. Non-maleficence
    • 4. Justice
    • 5. Impossibility
    • 6. Best axn
  146. Principles of Virtue ethics
    • 1. Prudence
    • 2. Temperence
    • 3. Justice
    • 4. Fortitude
  147. Proxy decision maker
    A decision maker for a patient when he cannot make his own decisions
  148. Proxy decision maker criteria
    • 1. Subj. std.
    • - Prev. expressed wishes
    • - Proxy has knowledge of values of incompetent person
    • 2. Obj. std.
    • - Best interests
    • - Obj. reasonable person std. in position of incompetent (adult)
    • 3. Substituted jgmt std.
    • 4. Never ethically appropriate to use his own values
  149. Competency
    • Do you understand the nature and consequences of your act?
    • NB: Lower capacity than medical competency
    • E.g., Northern: Gangrenous "soot" foot; nephew could make decisions for incompetent aunt
  150. Right to priv. and right to die
    If a person was competent and expressed wish to have no extraordinary measures could be allowed to die, why not provide ability to incompetent person?
  151. Assessing competence: explanation of choice
    Patients must give some explanation as to their choice so that their competence may be addressed
  152. Assessing competence: Deference given to adolescent decisions
    Assume child has capacity and parents can rebut it
  153. State's countervailing interests against patients' decisions
    • 1. Preservation of life (e.g., JWs, etc.)
    • 2. Protectoin of the interest of innocent 3d parties
    • 3. Prevention of suicide
    • 4. Maintaining the ethics of the medical profession
  154. Person interset v. state interest in passive euthanasia
    • At some point, person's interests override state's interests
    • Idea: If you have a right to refuse treatment that will save you, shouldn't you be albe to refuse futile treatment?
  155. Subj. proxy-making std.
    • In order of how to do it:
    • 1. subj. approach
    • 2. ltd-objective test
    • 3. Pure objective test
    • 4. have hosp. ethicist agree
    • NB: Docs must be cautionary; don't make decisions w/o running it by someone else, first
  156. Subjective proxy-making std.: Subj. approach
    • 1st step of subj. proxy-making std.
    • Factors:
    • 1. Religion
    • 2. Will
    • 3. Physician directive
    • 4. Recognized oral directives
  157. Subjective proxy-making std.: Ltd. objective test
    • Is there trustworthy ev. that the patient would have refused the treatment?
    • Do the burdens of treatment outweigh any physical pleasure, emotional enjoyment, or intellectual satisfaction that may be lost?
  158. Subjective proxy-making std.: Purse objective test
    Do the burdens of treatment outweigh the benefits of treatment?
  159. Right to Refuse Treatment
    • Person has a const. right ot refuse medical treatment; including hydration and nutrition
    • NB: Some states require clear and convincing ev. that this is their intent
  160. Parental refusal of life-sustaining treatment of minors
    Split: Some say yes, others say no
  161. Conservator decision based on oral ev.
    Allowed. Must be clear and convincing
  162. Clinical decisoin making
    • 1. Medical indications
    • 2. Patient preference
    • 3. Quality of life
    • 4. Contextual features
  163. Clinical decisoin making: Medical indications
    Does it fulfill any medicinal goals? With what likelihood? Is it futile?
  164. Clinical decisoin making: Patient preference
    What does patient want? Capacity to want it? If not, who will decide? Do patient's wishes reflect a process that is: informed, understood, and voluntary?
  165. Clinical decisoin making: Quality of life
    What is patient's view of quality of life? What is his subj. acceptance of likely quality of life? Views of the care providers about the quality of life? Quality of life less than minimal?
  166. Clinical decisoin making: Contextual features
    Social, legal, economic, and institutional circumstance in the case that can influence the decision and be influenced by the decision
  167. Tex. and end of life self determinative decision possibilities
    • 1. Physician directives; and
    • 2. Medical power of atty
  168. Tex. Adv. Directive Stat.
    • 1. Written info about hosp. policies
    • 2. 48 hours notice and invite to consultation process
    • 3. Written report available to family
    • 4. Failure to resolve dispute, try to relocate patient w/in 10 days
    • 5. After 10 days of no transfer, hosp. may unilaterally w/hold treatment
    • 6. Patient or surrogate may request time extension
    • 7. If family doesn't get extension, futile treatment may be w/drawn
  169. Cal. Adv. Directive Stat.
    • Doc must act in good faith w/ generally accepted health care stds.
    • NB: Pretty lenient on docs (good faith action = immunity)
  170. Euthanasian v. PAS
    Axn is the difference. Euthanasia is active PAS (physician actually administers drugs)
  171. Palliative euthanasia
    "If you take more than x dose, you'll die."
  172. Futility, generally
    "Useless." Modern def: a situation in which docs think a treatment should not be continued and patients insist upon treatment
  173. Futility: Baby Doe guidelines
    • 1. Baby is chronicall and irreversibly comatose
    • 2. Treatment is futile
    • 3. Treatment is inhumane
  174. Futility: EMTALA requirements
    • EMTALA requires docs to stabilize.
    • E.g., docs must treat non-breathing anencephalic baby; treating apnea, not their anencephaly.
  175. Futility: Requirement to provide futile care?
    Nope. Treatments that are medically inappropriate are not required
  176. Four elements of futility controversy
    • 1. Power
    • 2. Money
    • 3. Trust
    • 4. Hope
  177. Definitions of brain death
    • 1. Brain death
    • 2. Higher brain death
    • 3. Non-heart-beating donation
  178. Brain death, defined
    Irreversible cessation of all fxns of the brain, including the brain stem [most common def.]
  179. Higher brain death
    Irreversible loss of fxn of the part of the brain that deals w/ memory, personality, and perception
  180. Non-heart-beating donation, defined
    Irreversible cessation of hearth fxn; provides the rationale for retreiving organs from patients who aren't brain dead
  181. Religious conflicts w/ brain death in Tex.
    10 days. If you can't find new hosp. in that time, you lose
  182. Living organ donors
    • 1. Can donate renewable issues (liver, blood, semen)
    • 2. Can donate paired organs
    • 3. Cannot donate necessary life organs
    • 4. Can't sell body parts
    • 5. Controversies: Advertising for organs
  183. Dead organ donors
    • 1. Governed by Uniform Anatomical Gift Act
    • 2. Competent adults can donate organs
    • - if fam. says no, most docs will follow to avoid litigation
    • 3. Fam. members may make the gift if the decedent has not otherwise specified
  184. Taking organs from incompetent persons
    • Split:
    • 1. Can do it if its in the best interst of donor (e.g., Strunk: donor was very close to his brother and only had competence of a 6 y.o.)
    • 2. Can't do it (e.g., Pescinski: ct. wouldn't allow it; however, major difference was that there was no graet relationship between potential donor and donee)
  185. Donating organs from non-dead babies who will soon die
    Split. Really hard to say.
  186. Family interest in decedent
    Quasi property interest in some jx.
  187. State interest in decedent
    State can harvest certain organs (e.g., corneae) if they have a significant interest
  188. Decedent enucleation
    Allowed unless family tells doc otherwise; doc has no affirmative requirement to tell them that's the case
  189. Compelling oran transplants of nonincompetents
    • Not allowed. Can't force bodily invasions.
    • E.g., Shimp: bone marrow transplant case
  190. Preusme consent organ donation system
    You must affirmatively opt out of organ donation
  191. Prisoners and organ donations
    Prisoners are guaranteed health care and, thus, organs
  192. Property rights in excisde tissue
  193. Property rights in patents on your tissue
    None. Patient did nothing to contribute to uniqueness or novelty
  194. Patenting laws of nature
    • Can't do it. May have implications upon research.
    • BUT, if you do something that works outside of nature, it's new, useful or non-obcvious and can be patented
  195. Stealing cell lines from a research organization
    Not okay. Illegal.
  196. Researcher duty to disclose
    None. MDs may, but PhDs don't.
  197. Use of frozen embryos, consent requirements
    Can't use frozen embryos w/o consent from both parties
  198. Best way to allocate organs
    Not one. :-(
  199. National System of Organ Donation (UNOS)
    • 1. National level: Put forth criteria for getting on list, local docs have sole decision on who gets on list
    • 2. Urgency: Cat 1 (will die w/in 7 w/o organ); other cats: people in ICU, continuous care, etc. [urgency not used in kidneys cause of dialysis]
    • 3. UNOS guidelines: Benefit is ie breaker
  200. Benefit tie breaker in organ donation
    • 1. Chronic v. acute
    • 2. Histo matching
    • 3. Life expectancy
    • 4. Quality of life
    • 5. Compliance w/ treatment
    • 6. Alcoholics (former alchies get on, not current)
    • 7. Designated recipients
    • 8. Brain death criteria (looked at locally, according to brain death defs)
  201. Buck v. Bell
    Society's best interest is in limiting the reproduction of "imbeciles"
  202. Skinner: Equal protection analysis
    All persons must be treated equally under the law, as such, compulsory sterilization for felonies is not okay; can't use sterilization as deterrent
  203. Griswold: Right to privacy
    • Griswold said the right to privacy come from the emanations of the penumbrae of the BoR
    • Contraception to married couples is okay
  204. Roe: Right to priv
    • 4th amend creates right to privacy
    • State has compelling interest in protectin potential life; right becomes more compelling at viability
    • NB: If babies in the womb are people, 14th amend protects them
  205. Casey: Abortion limitations analysis
    • 1. Can't restrict a woman's right to abort pre-viability;
    • 2. Restrictions are allowed, but can't be unduly burdensome
    • 3. Restrictions are permissible, so long as they don't create a substantial obstacle
    • p. 749, know it.
  206. State interest in abortion
    • Interest in dignity of human life
    • Gov't has interest in protecting ethics of medical profession
    • Interest in protecting portential life
    • Interest in protecting health of mom
  207. Forced c-sections in dying women
    • Split.
    • Most states: Weigh the interests of the patient w/ the interests of the state
  208. Subj. std. of decision-making for dying pregnant women
    • 3 levels, in order of preference:
    • 1. Subjective std. (power of atty; written docs); then
    • 2. Substitued jgmt; then
    • 3. Best interest
  209. Tex. approach to dying pregnant woman sith
    "I understand that under Tex. law this directive has no effect if I have been diagnosed as pregnant."
  210. Fetal personhood
    • 1. Fetuses are not persons fro 14th amendment purposes
    • 2. Fetuses are persons under criminal law in 24 states
    • 3. Fetusess are persons in civil law in some states
  211. Abortion rights
    • 1. Before viability, state can't prohibit woman from aborting;
    • 2. No undue burdents;
    • 3. Structural mechanisms by which the state may express profound respect for the life of the unborn are permitted if they are not a substantial obstacle to the woman's exercise of her abortion rights
  212. Right to procreate v. right not to procreate
    • Right to not procreate is stronger than right to procreate
    • NB: If it's the person's only change to procreate, things chance (e.g., only 7 preembryos that, if destroyed, will leave a person childless forever)
  213. Personhood of preembryoes
    Not persons, but not property. An interim class that deserves more respect than property, but less than a person
  214. Surrogacy agreements
    Must be written (but are unlikely to be enforced if there's a change of heart)
  215. What to do when carrier has no genetic interest in child?
    Best interest of child
  216. Surrogacy and selling children
    Most states: Can't financially compel a pregnancy; surrogates often retain their maternity rights
  217. What makes a parent a parent?
    • 1. Biological parents
    • 2. Who gave birth? Husband is presumed to be the father
    • 3. Intent
  218. SC Law today
    Federal funds can be used on embryonic stem cells so long as federal funds don’t destroy the egg (i.e., privately funded org destroys the eggs, derives stem cells, then sells them to federally funded orgs)