Standards of Care

Ad Hominem

"Appealing to the actor" -in reference to emergency situations

Necessary Disclosures by doctor to patient

-Doctor must take precautions- disclose if he has aids Surgeon must reveal if he is an alcoholic -It is medical malpractice if dr. doesn't tell patient of new risks of treatment -Inform of risks on tests -Radiation, chemotherapy, blood transfusions, experimental drugs are all informed consent issues

Who determines if an emergency occurred

The Judge

8 Standards of Care

"PACK DICE": -Average Man of Ordinary Prudence -Knowledge or Presumed Knowledge -Custom (Industry Practice) -Emergency Situations -Disabilities -Children -Insane Person -Professional

Custom as a Standard of Care

- To prove there is a custom one must show: •A custom exists •The custom is reasonable •It was either: o Reasonable to follow it OR o Reasonable not to follow it -Evidence of custom or common practice is not the conclusive test of the standard of care, but it may be used as evidence of what a reasonable person would do under the circumstances

Policy for National Standard of Care

-Best standard today in applying standards to certified specialists b/c "the medical profession itself recognizes national standards for specialists that are not determined by geography, the law should follow suit"

What indicates and who determines that a custom is reasonable?

-Circumstances will dictate whether customs are reasonable and ought to be followed -It is up to a jury to decide whether: • There was a Standard AND • If someone fell below it

Policy for the Same or Similar Locality Rule:

-Designed to balance the need to avoid evaluating a general practitioner in a rural area by the same standards as a specialist in an urban teaching hospital with the need of the ∏ for access to expert testimony -Note: Problem with the rule is, it is difficult to determine whether 2 communities are similar: What should be the standard?

Policy for Strict Locality Rule

-Designed to protect doctors in rural areas who, because of inadequate training and experience, and the lack of effective means of transportation and communication, could not be expected to exhibit the skill and care of urban doctors. -Note: This rule may foster a substandard of care for qualified doctors by immunizing those medical professionals whose conduct conforms to the substandard medical practice -Note: This rule is unique to the medical field

Policies for holding insane people liable for their torts

-Deterrence -Difference btw temporary insanity/permanent -Want to make sure the victim has a way of remedy b/c they are innocent (rule of innocent parties) -to induce those interested in the estate of the insane person (if he has one) to restrain and control him -the fear an insanity defense would lead to false claims of insanity to avoid liability

3 Elements for Lack of Informed Consent

-Duty to inform -Causation (Objectively had the doctor disclosed the information, then the patient would not have consented) -Injury

Policy for Disclosure of Conflicts of Interest Btw Doctor and Patient

-Exercise control over own body -People have rights to integrity

Rule on Experts Testifying

-Experts can only devote 20% of their time to expert testimony -Policy: The law wants to ensure that experts who testify are still practicing in their field of expertise

Insane Person Standard of Care

-Insanity is not a defense to negligent conduct -Minority Rule Exception: Insanity will be a defense where one is suddenly struck with insanity without prior warning (like a heart attack or seizure)

Policies for Child Standard of Care

-Kids should be permitted to be kids, but sometimes being a kid must give way to greater societal good and look at activity child has undertaken -Society wants to discourage children from engaging in activities that should be relegated to adults or are inherently dangerous. The law remedies these kinds of situation by making them pay.

Knowledge or Presumed Knowledge Standard of Care

-Knowledge that a reasonable person would know or should know -Ex: Knowledge of a reasonable car owner; knowledge of a stranger in a strange land

Public Policies for Medical Consent

-Patient should have informed exercise of choice -Every person has the right to chart own course -Self-Determination is a fundamental American right

Exceptions to Full Disclosure for Medical Treatments

-Risks that ought to be known by everyone or are already known by patient -Disclosure would alarm emotionally upset or apprehensive patient -Emergency situations -As a defense, a physician may plead and prove that if the ∏ knew of the risks, full disclosure would be detrimental to ∏'s best interests

Disabilities in Standard of Care

-Standard is to take into consideration disabilities—reasonable disabled man under the circumstances and what he would do -A handicapped person does not have to take greater care than an ordinary person (take amount of care an ordinary person would if they had the same disability)

Child Standard of Care

-Standard to be applied to a minor is that he must act as a reasonable child of like age, intelligence, experience, and maturity -If the child is engaged in adult activity—or in some jurisdictions, an inherently dangerous activity—then he is held to adult standard

3 things consent to medical treatment requires disclosure of

-The Treatment Process -Available Alternatives -Collateral Risks

Who can be sued for malprectice

-doctors, -veterinarians, -attorneys, -teachers (hard to prove why someone didn't learn though- VERY HARD), -accountants, -Not clergy

Standards of Informed Consent

1) Doctor Focused Rule (Majority): Doctor in charge of what a patient knows or needs to know (What would a doctor in the same or similar community have disclosed) 2) Objective Patient Focused Rule (Most Minority jsds): What would a reasonable patient have done/ want to know? 3) Subjective Patient Focused Rule (Very few Minority jsds): What would the specific patient in question have done/ wanted to know?

What are the 3 competing standards for medical care?

1) Strict Locality Rule: The conduct of members of the medical profession is to be measured solely by the standard of conduct expected of other members of the medical profession in the same locality or the same community (minority)- THIS RULE IS OUTDATED. 2) Same or Similar Locality Rule: similar community in similar circumstances test (Majority Rule) 3) National Standard of Care- Where there is a national board certification, the board sets the standard (Only some jsds follow this, but there is a trend toward this)

6 General Rules for Medical Malpractice

1-The medical professional must possess the degree of skill and learning which is possessed by the ordinary member of the medical profession 2-The medical professional must NOT do something that the recognized standard of good medical practice in the community in which he is practicing forbids 3-The standard of medical practice in the community must be shown by affirmative evidence 4-Negligence on the part of a physician or surgeon is NEVER presumed 5- Negligence on the part of a physician or surgeon must be established by expert medical testimony 6-The testimony of other physicians that they would have followed a different course of treatment is not sufficient to establish malpractice unless it also appears that the course of treatment followed deviated from one of the methods of treatment approved

Emergency Situation Standard of Care

A person acting in sudden peril not of his own making (A reasonable person acting in an emergency not of his/her own making)

What is a Material Risk?

A risk is a Material Risk in regards to consent if the patient's knowledge of such would have affected the patient's decision

Difference between battery and negligence in medical malpractice cases:

Battery = touching/surgery without authorization Negligence = you didn't inform me properly

Case Primae Impressionis

Case of "first impressions for this court"

Disclosure of Conflicts of Interest Btw Doctor and Patient

Doctor must disclose to patients all personal interests in treatment in terms of research or economics

3 Ways in which an attorney's conduct may be questioned (Implicit promises to one's client)

Failure to: -Possess Knowledge or Skill -Exercise of Best Judgment -Use due care (describes steps that are mechanical rather than discretionary and hence because such steps implicate no professional judgment, courts are more willing to find liability)

Policy of Custom

Helps to form expectations of society and how people should act

What must a plaintiff show in order to hold an attorney liable for malpractice?

In attorney negligence cases, the ∏/client must show that but for the attorney's negligence, the client would have been successful in prosecuting or defending the claim. THIS IS VERY HARD TO PROVE

Policy for patient based standards of informed consent

One must allow the patient to make intelligent choices

Disabilities Policy

Safety of others & right of someone who has a disability to live in the world without being ostracized

The Professional's Standard of Care

The standard of care applied to the professional is that conduct that the ordinary (not average) member of the profession would engage in under the same or similar circumstances.

Average Man of Ordinary Prudence Standard of Care

the typical standard of care is that of a reasonably prudent person in similar circumstances Public Policy: Responsibility; You can't shut your eyes to what you should have known