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Health Care Tort Law Winter 2000 Course #514

Answer each question briefly, complete sentences are not necessary. Make sure you put your exam number on each page of the examination. Do not put your name or any other identifying information on the examination. Use no more than the space provided, and not all of the questions require all the space provided. Use specific case and statute references, as necessary. Do not write on the back - I only read what is on the front.

By taking this exam you are on notice that this exam is covered by the honor code. Violating the honor code rule will result in failure in the class and may result in dismissal from law school.

1) What book of the bible contains an early public health code that has useful rules for avoiding food poisoning?

2) What medicinal plant used by "witches" to treat heart disease is still an important cardiac drug?

3) Who discovered the properties of antimony by poisoning his fellow monks with it?

4) What disease is Jenner known for studying?

5) What two organizations originally formed the JCAH?

6) What are the two major items reported to the National Practitioner Databank?

7) What book lead to the enactment of the original food, drug, and cosmetics act?

8) What is the fundamental determination that the FDA must make when deciding whether a drug will be a prescription drug or an over the counter drug and how does this change the manufacturer's legal duties?

9) What is the risk management issue in Truman v. Thomas and how would you advise your physician client to deal with the problem if it arose in his/her practice with a patient that he/she had to continue to treat?

10) What are incident reports, will a plaintiff in a medical malpractice lawsuit be able to get them in discovery, and what is the controlling statutory citation in Missouri?

11) What information can a physician suing a hospital for defamation get that a plaintiff suing for medical malpractice cannot get, what is the controlling statutory citation in Missouri, and what is the rationale for the different treatment of medical malpractice plaintiffs and defamation plaintiffs?

12) If you are suing an HMO in Missouri, what did the 8th Circuit say in Varity Corp. (as discussed in Shea) that could help you?

13) What is the usual legal relationship between physician medical staff members and hospitals, how is this modified in EMTALA cases, and what document evidences this?

14) What are the elements of a Missouri product liability case based on failure to warn?

15) Explain the difference between implicit and express federal preemption of state tort law and give an example of each.  (Continue on the next page (6) if necessary.)

16) Your client had a crippling heart attack after taking Viagra purchased from an offshore Internet pharmacy.  The pharmacy does not require a prescription and all the client receives is a plain brown paper box with a bottle of pills.  The label says only "Viagra - take when horny."  There is no other information.  Heart attacks are a known side effect of taking Viagra.  You are suing Pfizer (the manufacturer) for products liability based on failure to warn about the contra-indications for taking Viagra.  What are Pfizer's defenses and how will you rebut them? (You may continue on the following page (8) if necessary.)