BSL vocab + concepts

Ch4 Liability- legal responsibility for ones act or omissions Medical malpractice is often negligence, but can also be due to a breach of

contractCreation of Relationship

For a contract to be valid:o Both parties must be legally competento There must be a meeting of the minds- offer & acceptanceo Consideration must be given

Payment of something of value in return for a received valueo Purpose of contract must be legal

Exculpatory contract – a party excuses another party from liability; usually illegal except in waivers to do dangerous things

o May be express or implied Contract can exist even if physician hasn’t met patient; ex. Pathologist

o Physician who provides service to someone not a party to a contract doesn’t have traditional physician patient relationship, although limited duty exists in the absence of a contractual relationship

Scope of duty Physician patient relationship based on contract since service for payment

o Absence of a contract imposes no duty Good Samaritan statute –provision of law that provides immunity from

liability for persons who provide emergency care at the scene of an accidento Childs v weise w/ women going into labor sent to another cityo Oliver v Brock established casual conversations with other physicians

doesn’t entrap them into patient physician relationships Workers compensation is an employees exclusive legal remedy for

workplace injury or illnesso Except for hospitals and hospital employee – dual capacity doctrineo ^came about from Guy v Arthur where plaintiff worked as lab tech

and contracted mercury poisoning from hospitals equipment and hospital employees failed to diagnose her condition resulting in the hospital being liable for workmans compensation as well as tort

Physician contractually agrees to diagnose and treat patient in accordance with standards of acceptable medical practice; not cure. Patient pays; not follow orders

o Physician may limit scope of contract to designated geographic area according to McNamara v Emmons

Might have to notify those affected by condition; aids and sexual partners Freese v lemmons – liability if patient injures a third party

o Tarasoff v regents of Univesity of California – doctors has duty to use reasonable care o warn persons threatened by a patients condition

Termination of relationship Contract ends if patient is cured/dies, both mutually consent to termination

of patient dismissed physician/withdraws from contract Express abandonment – physician notifies patient but fails to give enough

time for patient to secure another physician Sullivan v O conner – shows that physicians are susceptible to liability if they

fail to perform a certain prmised service but also if they fail on a promised result that was guaranteed;

o guilmet v Campbell - w/ ulcer and full guarantee that resulted in breach of warranty

Tort – a civil offense founded on contract that results in injury to another person, a person’s property, or their reuputation

o Intentional tort – wrongful premeditated action Outrage – intentional infliction of emotiona distress

o Negligence - unintentional failure to do what a reasonably careful person would do

o Strict liability – incurred when a perso commits a wrongful act that poses high risk of harm to others

o Assault and battery are 2 intentional torts; assault is conduct that places a person in apprehension of being touched in a way that is insulting, provoking, or physiciall harmful; battery is the actual touching

For medical reasons: 1 – where no consent was obtained, 2- where physician exceeded scope of consent, 3- where consent was uninformed; informed consent is needed

Barnett v Bachrach established that a surgeon may be justified in operating beyond the scope of the original consent under emergency situations

Defamation is a wrongful injury to another person’s reputation.o Written is libel and oral is slandero Truth of a statement is a defense; statements made in good faith to

protect private interest of physicians or patient have priveledgeo Some statements during a judicial proceeding are privileged and

provide a defenseo 2 other types of defamation cases are 1- invasion of privacy and 2-

wrongful disclosure of confidential information fiduciary duty – duty of individual or entity that has the power and duty to

act for another under the cicumstances that require trust, good faith, and honesty

misrepresentation – can be an intentional tort or negligent; may allow a patient to bring suit after the statue of limitations expires ;

o statute of limitation – law setting maximum period one can wait before filing suit

prima facie – enough evidence to win unless the defendant presents contradictory evidence

ex parte hearing- one in which only one party is presentCh5

tort is a civil wrong not based on a contract; most involve negligenceo Negligent tort requires 1- duty of care 2- breach of duty 3- injury and

4-causation Duty – legal obligation to the defendant (alleged tortfeasor – wrongdoer)

o Usually expressed as to act with due care or as a reasonable person would

o Standard of care – the caution and prudence a reasonable person would exercise under the circumstance or that is required by authority for those situations

Reasonable prudent person standard – physicians are measured against other physicians, not against the average man

o Who is a reasonable physician? Physician isn’t liable if chosen treatment would be recognized

by a respectable minority of the med professiono What neighbor/ should be considered?

Locality rule Created because of difference between rural and urban

medical practices Has now been changed to expand to national medical

neighborhood or national medical communityo What school of medicine do other physicians follow?

The school rool, osteopathic, allopathic, homeopathic, chiropractic

Mostrom v pettibone – chirpracter held responsible for failing to refer to someone outside of his area when needed

o Are the professions standards adequate? Favalora vs Aetna casualty & surety Co – patient fell while

being xrayed and medical history said she had history of that, radiologist should have checked medical history to make sure of medical history rather than just “looking at pictures”

Helling v Carey – Breach of Duty – once a duty has been established, the plaintiff must

establish evidence of the facts in the case and expert witness testimony Fun fact: Unlike criminal defendants, who can invoke the constitutional

privilege against self-incrimination, defendants in a civil case must testify to facts within their knowledge

Guardian ad litem – guaradian appointed by court to represent interests of minor or incompetent person

Doctrine of res ipsa liquitor – “the thing speaks for itself”o The accident or injury must be of a type that normally would not occur without

someone’s negligence.o plaintiff must show that the defendant must have had sole control of the apparent cause of

the accident or injury. o