Mills v Pate Background:

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Whether assumption of the risk is a valid defense and if so ws there enough evidence

Liposuction case Doctor was promising her results, showing her pictures Results weren't what were expected and she needed f/u procedures Problem was eventually fixed by another md. Mills claimed that Pate was negligent and the claim was later amended saying there was a breach of express warranty claims The ruling

Was submission of th eissue o assumption of the risk to the jury violate free exercise clause. Ruling:

Cause of action can be either breach of fiduciary duty to disclose facts material to the patients consent or performing medical procedures without first having obtained they patients informed consent, Notes:

Contracts against liability for negligence are valid except in those cases where public interest us involved and the refusal for blood does not address the negligence of the doc.

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Three important principals Adult reason of sound mind has right to determine whether or not to submit to medical treatment Patients consent to treatment must be informed consent Physician has fiduciary duty to disclose all information material to the patients decision. Therefore the md must disclose personal interests to the patients health (economic or research) and failure to do so will give rise to cause of action for performing medical procedures without informed consent or breach of fiduciary duty. If the doc has plans to conduct research at the time they recommend the procedure then the medical interests have not been impaired but this may be different if doc has predicting research interest. Corollary to that, disclosure of research and economic interests may corrupt the pts own judgment by distracting him about the requirements of his health just as a MD who is seekin the consent of a pt must (in order to satisfy his fiduciary duty) disclose personal interests unrelated to the patients health that may affect his medical judgment Doc needed to tell pt that his cells had potential commercial value at the time that blood tests were being done because at that time they were going to exploit the cells. even though there was no intent in the beginning, the doc had a duty to disclose the interest before the surgery court explicitly uses both fiduciary duty and informed consent doctrine to impose the obligation to disclose research and economic interests right to know also extends to experimental procedures Canterbury v. Spence part two Notes

Evidence says the release was signed voluntarily The release is not against public policy because it does not exculpate the doc from negligence in performing surgery but rather is agreement that she won't receive any blood, Plaintiff assumed the risk of death Canterbury v. Spence Background:

This breach of express warranty claims cannot be used to recast the cause of action as something other than malpractice claim The breach was because the md made specific claims regarding the results of the surgery. She said the services he provided don't conform with the quality described In Sorokolit, when an md promises a particular surgical result he can be held liable. This doesn't require a failure to meet standard of care.

Seeking damages for negligent surgery and failure to disclose risk of series disability in the operation and negligent post op care Patient fell from bed and became parilyzed. Doctor said the surgery was no more serious than any other surgery Pt had to void and was left unattended

The statute of frauds requires an agreement relating to medical

care or results be in writing. The lack of this writing is an affirmative defense A trial court may not grant a no-evidence motion for summary judgment on an affirmative defense,

Contract claims have longer statute of limitations for a tort action and the plaintiff doesn't needd to establish medical standard of care The measure of damages are expectancy damages which are what one would be sufficient to place the plaintiff in a position he would be in if the contract had been performed or restitution

Lower court said that there was no evidence that the doctor was responsible for the injuries. It was revised in saying that the lack of disclosure by the doc does not negate as a matter of law. Ruling

damages.

True consent to what happens allows an opportunity to evaluate knowledgably the options available and risks attendant join each. Md has obligation to communicate specific info to patient when the exigencies of reasonable care call for it. The doc has to tell the patient about symptoms of bodily abnornalities, alternate therapies, and dangers of proposed treatments. and what happens if you don't do anything A doctor has a duty of reasonable disclosure of the choices with respect to the proposed therapy and dangers involved A patients cause of action is not dependent upon the existence and nonperformance of professional tradition. Tradition is helpful in determining if professional conduct has been met, but it does not itself define a standard The physicians duty to disclose is governed by the same legal principals applicable to others in similar situations

You can also award pain and suffering.

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There is a difference between an express warranty and therapeutic assurances Tunkl v. Regents of univ. of California Background:

there must be a causal relationship between the failure to divulge and damage to the patient. this exists only when disclosure of significant risks incidental to treatment would have resulted in a decision against it issue is so subjective because how can you know whether they would or would not have decided against it. best way to resolve this is to ask what a prudent person in the patient's position would have decided to do if suitably informed CAusation can only be established if there is a link between failure to disclose and the injury. there are two tests objective reasonable patient test and subjective particular patient test. objective = what would a reasonable patient do, subjective = what would that particular patient do? damages are measured by comparing a bad outcome with the probable result if an alternative procedure were performed or nothing done. there may be punitive damages under right set of facts b/c this is a patient autonomy violation Canterbury v. Spence part three Notes

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Exculpatory clauses

Concerns validity of a release from liability for future negligence as a condition for admission to a hospital (non-profit)

Plaintiff was in great pain when he had to sign the agreement and wasn't mentally sound, the hospital was non profit and a condition to admission released hospital from any and all liability for negligent or wrongful acts or omissions

Civil Code 1668 says contracts that exempt someone from

The patients right of self decision can only be exercised if the patient has enough information to make an intelligent choice. All risks affecting the decision must be unmasked, Physicians liability for no disclosure is to be determined by foresight and not hindsight

responsibility for injury of another person is against the policy of the law Ruling:

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Past rulings have held that exculpatory clauses may stand only if they do not involve the public interest. A business that is in public interest: Is suitable for public regulation Performs a service of great importance to the biblical The party holds itself out as willing to perform those services

The scope of the standard depends on the patients informational needs with leeway for the docs situation. A risk is thus material when a reasonable person, in what a doc knows or should know to be the patients position would be likely to attach significance to the risk or cluster of risks in deciding whether or not to forego the proposed therapy, Topics impoortant demanding communication are potential hazards of proposed treatments, alternative treatments, and results if patient goes untreated,

Therefore hospital tastiest contract is within agreements falling within public interest

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Two exceptions to the general rule of disclosure> when the patient is unconscious or otherwise incapable of consenting and harm from a failure to treat is imminent and outweighs any harm threatened by the proposed treatment when risk-disclosure poses such a threat of detriment to the patient as to become unfeasible or conraindicated from a medical point of view the key question is did the physician respond to a sound medical judgment that communication of the risk informaiton would present a threat to the pt's well-being the doctor must be careful because if they are quiet only because they feel the patient may forego therapy it would be bad. in an emergency the doctor can act without consent so long as he acts with customary practice if a physician claims they were quiet because of specific considerations in the individual patient's case they must identify those considerations. Humphers v. First Interstate Bank of Oregon Background

Patient is in no position to reject the proffered agreement.. It is an adhesions contract Waivers of the right to sue are ok in voluntary activities because it is then a freedom of contract. Shorter v. Drury Background:

Doctor must disclose diagnosusm nature and purpose of proposed treatment and the risks of that treatment. Remote risks can be omitted but the threshold of disclosure varies with the product of the probability and severity of the risk. For treatments, docs should disclose all feasible alternatives. Moore v. Regents of univ. of California Background:

Jehovah witness case and doctor chose method for missed abortion that had high bleeding risk. No other methods were described.

Review of whether Moore had cause of action for breach of physicians disclosure obligations.

Plaintiff signed consent form releasing hospital and everyone from any responsibility due to the refusal against using blood products Plaintiff died and husband said that the doctors negligence proximatey caused her death. Three issues

Pt had leukemia and needed spleen removed. Before surgery the doctors formed intent to obtain samples of the spleen for research permission. They took a lot of other samples and never told the pt about all this and made a lot of money. Alleges that the doctor failed to disclose the extent of his research and economic interests in the cells before obtaining consent.

There was this lady who gave up her child to adoption and the kid wanted to reestablish contact with her biological mother

she found the doctor who remembered a few pieces of medical information and also told a lie that this information is important that she gets in contact with her bioogical mother. the doctor wrote a letter and because of this the hospital personnel allowed her to make copies of the plaintiff's medical records. the mom is claiming emotional distress and all this stuff and is trying to recoup some money based on 5 different theories dr incurred liability for outrageous conduct disclosure of professional secret fell short of care disclosure wrongfully breached a confidential or privileged relationship this disclosure of confidential information was an invasion of privacy disclsoures breached contractual obligation of secrecy supreme court of oregon said that if there was a claim it was from a breach of a professional duty to keep plaintiff's secret the promise of confidentiality was expressed or implied b/c patient was registered under an assumed name.

Expert testimony is not necessary to establish the standard of care b/c the context was not too technical for lay jurors to understand Rulings:

plaintiff claims he was in immediate need of medical and surgical care and he was in danger of dying unless treated. Dr. saw the pt and advised him to continue treatment he had at hospital. He was also told by doctor t come by the office if there was an issue. He was told to go back to the hospital and then the doc refused to treat him because of financial reasons and was told to seek treatment elsewhere. Pt had to have finger amputated Defendents say there was no contract of employment b/w plaintiff and defendants and weren't obligated to proceed with treatment and that even if so, no evidence that refusal resulted in damage Ruling

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There was evidence that there were lapses in the enforcement of the protocols and that allowed the jury to conclude the hospital breached its duty as a fiduciary to maintain the confidentiality of the records judgement in favor of the appelant. Notes - states require reporting of HIV and AIDS cases Herman v. Kratche Background

The medical clinic kept sending plaintiff's records and private medical information to the HR department at the place he worked at they were sent for "workers comp coverage" and the info was sent multiple times. plaintiff filed suit for unauthorized disclosure, invasion of privacy, and intentional infliction of emotional distress. Ruling and Notes: a physician's breach of a patient's confidence in the form of unauthorized disclosure of that patient's medical informaiton is an independent tort separate from the invasion of privacy

the relation had not been terminated and plaintiff's return to doctor was on the advice of the doctor himself a physician or surgeon upon undertaking an operation or other case is under the duty (in the absence of an agreement limiting the service, of continuing his attention, after the first operation or first treatment, so long as the case requires attention. the attention can be terminated only by the cessation of the necessity which gave rise to the relationhsip or by the discharge of the physician by the patient or by the withdrawal from the case by the MD after giving the pt reasonable notice to give the pt the ability to get another doctor so the physician was in violation of the duty to treat and the other ruling about damages b/c of this had to be determined by jury. Childs v. Weis Background Preggers person who went to a hospital's ED and the nurse called the doctor and doctor said to call her own doc in Dallas. shew as just starting to go into labor. had baby on the drive and baby died. the doctor at the ED never saw the person before and he never consented to the exam or treatment Ruling the relationship between MD and pt is dependent upon contract (express or implied) and the MD is not to be held liable for refusing to respond to respond to a call of a person even urgently in need of medical or surgical assistance provided that there is no established relationship. the statement by the nurse over the telephone was not acceptance of the case Williams v. U.S. Background Person in NC had signs of respiratory distress and went to an Indian Hospital operated by US public health service. federal employees refused to treat b/c he wasn't indian (the federal Indian HEalth Care Improvement Act prohibits the hospital from treating non-indians with exception of emergency medical treatment which they are permitted but not required to provide to non-indians. US filed motion to dismiss and district court agreed saing that NC has no law creating a duty in favor of a private person to provide medical treatment or to recover for a discriminatory refusal to provide medical treatment Ruling NC supreme court has held that a physician has no duty to render services to every person seeking them common law does not limit a provider's discretion to turn away potential patients, the court found it unobjectable that the doctor had refused to treat the patient b/c he mistakenly believed the patient was drunk Supreme court upheld lower courts ruling for dismissal. EMTALA - Emergency MEdical Treatment and Labor Act

a contract claim may be adequate where a breach of confidence causes financial loss but it denies damages for emotional injuries. a contract claim is unavailable if the defendant physician was engaged by someone other than the plaintiff Ruling and Notes

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only one who holds information in confidence can be charged with a breach of confidence. if an act qualifies as a tortious invasion of privacy it theoretically could be commited by anyone four kinds of claims grouped under privacy appropriation of the plaintiff's name or likeness unreasonable and offensive intrusion upon the seclusion of another public disclosure of private facts publicity which places the plaintiff in a false light in the public eye they said that since he did not approach someone for facts he didn't know and therefore he didn't invade privacy, if anything he failed to keep confidence

unauthorized patient disclosure is a breach of their fiduciary duty which is basically a claim of negligence involving a higher standard of care. This means you have to show that there is an existence of a duty on the part , failure of the duty, and an injury as a result of the breach.

the real issue is whether the employer is a third party. this is because the tortious conduct of an unprivileged disclosure occurs the moment the nonpublic medical information is disclosed to an unauthorized third-party. this conduct does not depend on what the duties of the third part are or what they do with that informaiton. the key is whether the receiving paryy is authorized to receive the informaiton or not. tort of negligent invasion of the right of privacy is an actionable invasion of the right of pricacy is unwarranted appropriation or exploitation of one's personality and causes outrage or mental suffering. Bragdon v. Abbot Background HIV case, dental appointment, doc wanted it done at a hospital instead of his office because he thought it was safer Under ADA's definition of disability, petitioner could have refused to treat pt if infectious condition posed a direct threat to the health and safety of others. direct threat = significatn risk to the health of others that can't be eliminated by modification of policies, practices, procedures Doc did not cite any scientific evidence that hospital would be better Supreme court wasn't sure if the American dental association and CDC do not contain implicit assumptions conclusive and weren't good enough. ADA isn't public health authority. Basically they said the dentist didn't find any sources to say there was a direct threat

MDs are required to report medical information to others for protection of the pt, other individuals, or public. even without this legal obligation there may be a privilege to disclose informaiton for safety of individuals or important to public in public interest a physician is not to be held to a noncontractual duty of secrecy in a tort action when disclosure would not be a breach or would be privileged in direct enforcement of the underlying duty.

there is no privilege to disregard the professional duty imposed by the ruling solely in order to satisfy the curiousity of the person who was given up for adoption therefore the plaintiff may proceed under the claim of breach of confidentiality in a confidential relationship what has protected confidentiality of medical information? physician-patient privilege (can protect them from disclosing in court) and it does not require to keep inforamtion from employers and insurers it is a statutory privilege it does not apply in non-diversity federal proceedings privilege is in most states subject to many exceptions

applies only to confidential disclosures made to a physician in the course of treatment and is easily waived Doe v. Medlantic Health Care Group Background:

Estate of Mauro v. Borgess Medical Background

person diagnosed with HIV and coworker who worked at hospital ended up looking up the pt and then told people he had aids and they were ridiculing them

Mauro was surgical tech and had HIV. Borgess created task force to see whether an HIV positive employee could safely do the job responsibilities, they said he was a direct risk and offered him another job, he refused and they fired him. Mauro claimed it went against violation of rehabilitation act which said that no qualified individual with handicaps sholl be excluded from participation in or denied benefits of program receiving financial assistance . Rehab act says Important to analyze whether he or she poses a significant risk of communicating the disease to others at the work place. ADA says is the person a "direct threat" to others. four factors to consider: nature of the risk, duration of the risk, severity of risk, probabilities it will be transmitted.

a claim was filed alleging tort claims of invasion of privacy based

on the disclosure and breach of confidential relationship based on the health group's negligence in permitting the person access to confidential patient information medlantic says Doe failed to prove the breach of confidentiality b/c there was no evidence there was a disclosure of confidential inforamtion, no evidence of actual breaches of hospital protocols and also claimed that they failed to provide expert testimony on the hospital's duty as a fiduciary with repect to record-keeping Tort of breach of confidential relationship is described as consisting of the unconsented, unprivileged disclosure to a thirt party of nonpublic information that the defendant has learned within a confidential relationship.

if a hospital has an emergency department and receives funds for medicare/medicaid and a person comes in, they must be examined or treated (appropriate medical screening exam) within the capability of the hospital to determine whether an emergency condition exists. If there is an emergency medical condition they must stabilize the medical condition or transfer the person to another facility. the hospital can't transfer an unstable person unless the person requests in writing or the physician signs a paper believing that medical treatment at another facility outweighs the risk w/o the transfer

Basically it was impossible to restructure the job so they were in the right to fire

this imposes an obligation stricter than the reasonable person test to honor the trust and confidence because of the special relationship

Ricks v. Budge Background

an appropriate transfer is when the transferring hospital provides treatment to minimize risk and the receiving facility has agreed to accept the transfer the fines are up to $50,000 or if gross and flagrant violations an exclusion from medicare/medicaid emergency medical considtion is an acute symptoms of sufficient severity that w/o immediate attention would put the individual in jelopardy, result in serious impairment, dysfunction stabilized is with no material deterioration of condition is likely within reasonable medical probability.

submit to lawful medical treatment. a patient has the right to

refuse any medical treatment, even that whcih may save or prolong her life

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Brother in a catholic religious order had brain damage during a surgery and was in a vegetative state with no reasonable chance of recovery. Leader of the order requested hospital to remove the respirator, district attorney didn't want them to. patient made it previously known that under these circumstances he would want the respirator removed Illinois supreme court described principle of substituted judgment this way: surrrogate decision maker attempts to establish what decision the patient would make if they were competent. First tries to determine if pt had exrpressed explicit intent regarding this type of medical treatment prior to becoming incompetent. If there is no clear intent the pateint's personal value system must guide the surrogate In Re Conroy Notes

the decision belongs to her and tsn't a decision for the MDs to make. if a right exists, it doesn't matter what motivates its exercise personal dignity is a part of one's right of privacy Countervailing State Interests Notes

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o Alleged that the doctors: fialed to provide appropriate medical

Baber v. Hospital Corporation of America Background screening examination, failed to stabilize, and transferred w/o stabilizing

the four interests that could overcome a patient's choice Preservation of life

o o Psychiatrist came in and said it wasproably a relapse of a chronic o mental illness. both docs agreed she needed to be transferred to a psych unit at another hospital. The husband wanted xray
Lady came in, Doc examined her and ordered several tests, lady began pacing and was acting crazy. She fell and hit her head. (wasn't given) Transferred and worse seizure and later died (she had fractured skull). Case was thrown out and affirmed by ct. Ruling EMTALA only requires hospitals to apply their standard screening procedure for identification of an emergency medical condition uniformly among all pts the goal of appropriate med. screen. is to determine whether pt with acute or sever symptoms has a life threatening condition. requires hospital to develop a screening procedure designed to identify such critical conditions

distinction in the state's insistence that human life be saved when then affliction is curable as opposed to the state interest where the issue is not whether but when and for how long and at what cost to the individual that life may be briefly extended protection of the interests of an innocent third party prevention of suicide Maintenance of the ethical integrity of the medical profession These interests have never been found to be sufficient to overcome the choice of a competent patient

life-sustaining treatment may be withheld or withdrawn from an incompetent patient when it is clear that the particular patient would have refused the treatment under the circumstances involved Three tests Subjective the question isn't what a reasonable or average person would have done but rather what would that particular person have chosen to do. based on the pt'd right to self-determination limited-objective this is when there is some trustworthy evidence that the patient would have refused th treatment and the decision-maker is satisfied that it is clear that the burdens of the patient's continued life with the treatment outweigh the benefits of that life requires some trustworthy evidence that the patient would have wanted the treatment terminated pure-objective net burdens of the pt's life with the treatment should clearly and markedly outweigh the benefits that the patient derives from life subjetive evidence that thte pt wouldn't have wanted the treatment is not necessary this tends to be a best interest standard Sokol v. Akron General Medical Center Notes cardiac w/questionable performance (high mortality rate) was subject to an investigation by a task quality task force. task force met with doc and said he had poor case selection and improper myocardial protection. medical council recommended plaintiff not be permitted to do emergency surgery. Ruling and notes court shouldn't interfere unless hospital acted in arbitrary or unreasonable manner. hospital must provide procedural due process requires meaningful notice of adverse actions. it isn't up to the court to decide whether he was inacurately judged, instead they need to see whether there was notice and enough sufficient materials. arbitrary decision - the hospital must be willing to judge other surgeons if they fall into the same category as the plaintiff. the court limited its scope of review over the merits of the hospital's decision by testing only whether it was arbitrary Mateo-Woodburn v. Fresno Comm. Hosp Notes

the constitutional right to privacy is an expression of the sanctity of individual free choice and self-determination as fundamental constituents of life Application of the president and directors of georgetown college Background and Notes

o lady had ruptured ulcer and had no personal physician, she had 7
mo. old kid. Jehovah's Witness. Death w/o blood was imminent. district court denied permission to administer blood, went to US court of appeals

doesn't guarantee emergency personnel will correctly diagnose a condition the exam must be "appropriate" and w/in capability of hospitals ED the critical element of an EMTALA cause of action is not the adequacy of the screening exam but whether the exam had deviated from the evaluation procedures that would have been performed on pts w/similar conditions suffers from EMC

Husband said that if court ordered the transfusion the responsibility wasn't his judge on appeal allowed the administration of the transfusion

court can order compulsory medical treatment of kids with serious illness or injury and also for adults that have contagious diseases (there are no religious exemptions for these orders a parent has no power to forbid the saving of the kid's life judge took that the religion only prevented her consent to a transfusion. t wasn't against the religion to forgo the transfusions -- they just couldn't agree with it Tests of competency to consent to treatment

o Transfer requirements don't apply unless hospital determines pt

pt must show pt had EMC, hospital knew of condition, pt wasn't stabilized, and didn't follow proper transfer procedures Cruzan v. Missouri Dept of Health (right-to-die) Notes

Notes five different tests evidencing a choice reasonable outcome of choice emphasis is on outcome rather than the mere fact of a decision choice based on rational reasons whether the decision is due to or a product of mental illness ability to understand ability to know the risks, benefits and alternatives to treatment (including no treatment) actual understanding whether there is a knowledgeable consent to treatment. MD needs to educate pt and then ascertain whether they actually understood Quakenbush Case Notes 72 year old who had gangrene legs was an objector to medical therapy and shunned medical care for 40 years. two docs looked at him and one said he was capable and the other said he wasn't. the doc visited him and said he was capable and competent to make his own decision

o o o the opinion of the court recognizes a constitutionally protected liberty interest in a competent person to refuse unwanted medical treatment o the opinion also permits a state to limit its consideration to those wishes previously expressed by the patient and to ignore the
Autonomy = each person is in control of his own person // Beneficence declares that what is best for each person should be done decisions of another person acting on behalf of the patient The court strongly suggested that the Due Process Clause protects the traditional right to refuse unwanted lifesaving medical treatment most law regarding health care decision making should be established on a state by state basis a missouri court ruled that they will not permit the guardian to forum shop in an effort to control whether someone lives or dies

Bovia v. Superior Court Background

petitioner wants a nasogastric tube that was inserted without her will be removed.

She has severe cebebral palsy, quadriplegic, immobile, unable to care for herself, is mentally competent, without financial means to support herself she has expressed desire to die and has tried to starve herself to death. Ruling a person of adult years and in sound mind has the right in the exercise of control over his body, to determine whether or not to

a patient who fluctuates between capacity and incapacity cannot be denied an opportunity to make decisions concerning medical care, even life-sustaining medical care just b/c of the temporary absence of capacity a patient may have capacity for some purposes and not for others In Re Eichner Notes

anestesiologists were an open staff and scheduled themselves. b/c of issues of docs not showing up, the medical staff changed it to a closed system. the executive committee met and after advice from a task force agreed to close the department. the board entered into an agreement with a professional corporation to get services and if current docs don't enter into a contract with the corp. then they won't be able to do anesthesia there. some docs refused and sued. Ruling and notes

numerous cases say the governing body of a hospital may make a policy over a whole department and they can say whether it will be opereated by a department through contractural arrangements and the exclusion of others the decision to close the dept did not reflect upon the character of any particular anesthesiologist decision was not arbitrary and did not change the judgment of individual docs by bylaws. economic credentialing is when a hospital makes privileges decisions based on financial factors unrelated to quality. Mahan v. Avera St. Lukes Notes

difficulty of proof may fall most heavily on pts b/c statute precludes discovery of evidence obtained by hospital and the patients bear burden of proof on negligence Employment AT-Will Wright v. Shriners Hospital Notes claim was that nurse who wrote letter to national company and fired was in violation of public policy nurse reported a lot of issues with the company and chief of staff b ecame upset and ordered that she be fired court rules that her termination is not violation of public policy b/c employment at wi9ll is terminable by either the employee or employer without notice for almost any reason or for no reason. a regulation governing a particular profession is not a source of well-defined public policy sufficient to modify general at-will employment rule courts have a narrow view and without specific whistleblower statutes she can't use those

hospital learned there was a group of surgeons who built a surgery center that would directly compete with the hospital.

hospital board closed hospital medical staff for mds who wanted three spinal procedures and the second motion closed the medical staff for orthopedic surgery except for surgeons being recruited. didn't impact MDs who already had privileges. court ruled that surg. center has standing to bring cause of action for breach of contract because they were losing revenue and also that the hospitals bylaws constitute a contract b/w hosp. and its staff. court said that the board closing the staff to 3 procedures was acting w/in powers of corporate bylaws b/c it was essential to the hospitals economic survival. courts shouldn't interfere in the internal politics and decision making of a private nonprofit hospital. court ruled that closing it off to the current MDs was essentailly crating an exclusive contract with them. this was a reasonable administrative decision and the closures were necessary from an economic standpoint Negligent Credentialing Carter v. Hucks-Folliss Notes

doc gets reviewed for privileges every 2 years but has never been certified by board of neurosurg. and he took and failed certification 3x. question about whether hospital seriously looked at credentialling the doc or not. claim: defendent negligent in granting clinical privileges, failing to see whether he was qualified, failing to enforce JCO standards. hospitals owe duty of care to its patients to ascertain that a MD is qualified. appropriate to consider whether hosp. complied with CO. failure to comply is some evidence of negligence most important func. of hosp. is to select high quality mds hospitals governing board has ultimate responsibility for quality of care provided (normally delegated to staff though) Larson v. Wasemiller Notes

claim about negligence in granting privileges granting privileges normally doesn't create employment relationship with hospital. a review organization shall be liable for granting privileges where the grant is not reasonably based on the facts that were known or that could have been known by reasonable efforts two big questions: does the peer review statute create a cause of action for negligent credientialling and is there common law cause of action for negligent credentialing? for common law cause of action for negligent credentialingy it must decide 1)whether tort is inherent in or extension of established common law right, 2)was tort recognized in other states, 3) whether recognition of a cause will create tension with other laws, and 4) does tension outweigh importancs of additional protections? some courts view tort of negligent credentialing as natural extension of negligent hiring. plaintiff must demonstrate that but for the hospital's failure to exercise due care in granting privileges the plaintiff would not have been injured. negligence could be shown on the basis of what was known and also what should have been known at the time of the decision records from original sources shall not be immune from discovery. a witness cannot be asked about witness' testimony before a review board.