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Health Care Torts
Professor Richards
Spring 2004

Exam and Key

New - Study Questions Old Adlaw exam for exam format - there was more room to answer questions than is on this form. The old heath care torts exams are on different material - look at them only for the type of questions I ask, not for the specific questions.

Exam Prep Tips

The format is short to medium length answers - you will be asked some specific questions about the materials we have discussed and the cases we have read. You may be given a hypo and then asked about specific issues - no open ended questions. You can also look at old exams. I will also post some study questions next week.

Check back for more information!

All the materials for this course will be on the WWW or will be handed out in class. If you want to send me email, do not use Semester Book to do it, but use my direct email address: richards@lsu.edu

 - Professor's secret #1 - How to Mark Up a Case

January 13

Introductory Lecture - No reading assignment - slides

January 15

Introduction to health care torts research and materials - No reading assignment

January 20 - Group 1

Informed Consent

Moore v. Webb, 345 S.W.2d 239 (Mo.App. 1961)

Guide to Moore v. Webb, 345 S.W.2d 239 (Mo.App. 1961)

Cobbs v. Grant, 8 Cal. 3d 229, 502 P.2d 1, 104 Cal. Rptr. 505 (Cal. 1972)

Guide to COBBS v. GRANT, 502 P.2d 1 (Cal 1972)

January 22 - Group 2

Finish Cobbs v. Grant

Truman v. Thomas, 611 P.2d 902 (Cal. 1980)

Guide to Truman v. Thomas, 611 P.2d 902 (Cal. 1980)

LA's version of Truman v. Thomas - Physician must perform necessary tests or refuse to treat unless it is an emergency - Costa v. Boyd, No. 36,584-CA (La.App. Cir.2 01/31/2003) - (NOT ASSIGNED)

January 27 - Group 3

ARATO v. AVEDON 858 P.2d 598 (Cal 1993)

Guide to ARATO v. AVEDON 858 P.2d 598 (Cal 1993)

Informed Consent in Louisiana - Lugenbuhl v. Dowling, 701 So.2d 447 (La. 1997), rehearing denied (Nov 21, 1997)

January 29 - Group 4

Breech of Fiduciary Duty

Moore v. Regents of University of California, 793 P.2d 479 (Cal. 1990)

Guide to MOORE v. THE REGENTS OF THE UNIVERSITY OF CALIFORNIA, 793 P.2d 479 (Cal 1990)

Note on the study guide - the guide only goes through paragraph 61 because that is where the torts analysis ends.  However, I also want you to figure out what why conversion was rejected, which runs though 104 - the end of the majority opinion.  I did not give study questions on this because we are not doing it in detail, but you do need to read it.

February 3 - Group 1

Experimental Treatments

Schiff v. Prados, 92 Cal.App.4th 692, 112 Cal.Rptr.2d 171, 157 Ed. Law Rep. 264, (Cal.App. 1 Dist. 2001).

Study Guide to Schiff v. Prados, 92 Cal.App.4th 692, 112 Cal.Rptr.2d 171, 157 Ed. Law Rep. 264, (Cal.App. 1 Dist. 2001)

More Burzynski materials.

Interesting site: http://www.guineapigzero.com/index.html

February 5

No class - please attend the bioethics and biotech seminar at Pennington as you have time.

February 10

Managed Care

I have moved Pegram to next class. I am doing a lecture on health care finance and ERISA first - I realized that you need some background to appreciate Pegram.

Managed Care Economics

Follow up to Feb 2 class - Great story from the New Yorker on food supplements:

http://www.newyorker.com/fact/content/?040202fa_fact

February 12

Group 2 - Pegram v. Herdrich, 530 U.S. 211, 120 S.Ct. 2143, 147 L.Ed.2d 164 (2000) - the USSC sorts out ERISA preemption for medical malpractice claims. Annotated case in HTML - Word

February 17

Group 3

Proving Standard of Care:

Hastings v. Baton Rouge General Hosp., 498 So.2d 713 (La. 1986), rehearing denied (Jan 08, 1987) - study guide

This case sets out the legal requirements for proving standard of care.

Proving Standard of Care II - Fusilier v. Dauterive, 764 So.2d 74 (La. 2000)

This case shows how the court may review this standard and overturn the jury's determination of the facts. While the standard of review is high, the court overrules both the jury and the finding of the medical review panel. This is a simple case: focus on what happened; what factors the plaintiff claimed as requiring a finding of negligence; the conflicting testimony from the defense expert; and the Court's rationale for overruling the jury verdict.

February 19

Group 4

Discovery of Hospital Records

Court Clarifies Privilege for Hospital Committee Records - Smith v. Lincoln General Hosp., 605 So.2d 1347 (La. 1992)

This is a short case on the discovery of medical records in litigation. Be sure to read the revelant statutes:

Title 44 §7. Hospital records

Title 13 §3715.3. Peer review committee records; confidentiality

Key questions: 1) Why do we want to protect these records?; and 2) Why were the records plaintiff wanted not protected?

Peer Review Litigation

Court Sets Standards for Contesting Peer Review - Smith v. Our Lady of the Lake Hosp., Inc., 639 So.2d 730 (La. 1994) - study guide - slides

This is a long and complex case about the legal review of the peer review process. Be sure to use the study guide.

Med School Proposal for Improving LA Medical Care

February 24 - Holiday

February 26

Movie day! We are going to watch a court TV tape of highlights of a real med mal trial.

March 2

Group 1

Hospital liability for medical care delivered by its employees - Bossier v. DeSoto General Hosp., 442 So.2d 485 (La.App. 2 Cir. 1983)

Hospital liability for non-medical claims - Lopez v. State, 721 So.2d 518 (La.App. Cir.3 1998)

In both of these cases concentrate on the analysis of the hospital's liability and liability for hospital employees. We will not discuss the physician med mal issues or the procedural issues.

FYI - Locality rule for hospitals
The cases say that LA does not apply the locality rule for hospitals - Moore v. Willis-Knighton Medical Center, 720 So.2d 425, 428, 31,203 (La.App. 2 Cir. 10/28/98). This would be consistent with the rule for physician specialists because hospitals are nationally accredited. One case says that nurses are governed by the locality rule - Donaldson v. Sanders, 661 So.2d 1010, 1015, 94-1366 (La.App. 3 Cir. 7/19/95). This has not been overruled, but it is not clear that it is good law. Subsequent cases seem to ignore it.

March 4

Group 2

Vicarious liability for intentional torts against patients

Samuels v. Southern Baptist Hosp., 594 So.2d 571 (La.App. 4 Cir. Feb 13, 1992)

Standard for Vicarious Liability for Intentional Torts by Employees - Baumeister v. Plunkett, 673 So.2d 994 (La. 1996) - This is the right case. Please read it!

Bonus case (not required reading) - Switched at Birth!

Louisiana Patient's Compensation Fund

March 9 - Guest Speaker

March 11 - Guest Speaker

Statutory citations to review for last class and the remainder of this series of lectures. - LARS 40:1299.41 - LARS 40:1299.48

Cases to read:

Everett v. Goldman, 359 So.2d 1256 (La. May 22, 1978)

Kelty v. Brumfield, 633 So.2d 1210, 93-1142 (La. 2/25/94) (focus on par 31 - end of the majority opinion)

Patin v. Administrators of Tulane Educational Fund, 770 So.2d 816, 1999-3027 (La.App. 4 Cir. 8/16/00)

The WWW site for the Patient's Compensation Fund:

Rules and Regulations for the Board

Rates and Tail Coverage

Check back for additional materials on the fund and the presentation of cases to the review panel.

March 16

Our guest speaker was called away to court and I filling in to cover the three cases assigned last time. I am breaking these between two groups since there is quite a bit in a couple of them.

Group 3

Everett v. Goldman, 359 So.2d 1256 (La. May 22, 1978)

Group 4

Kelty v. Brumfield, 633 So.2d 1210, 93-1142 (La. 2/25/94) (focus on par 31 - end of the majority opinion)

Patin v. Administrators of Tulane Educational Fund, 770 So.2d 816, 1999-3027 (La.App. 4 Cir. 8/16/00)

March 18 - Guest Speaker

Patient's compensation fund documents for Kelty:

Findings and Conclusions

Final Ruling

Final Ruling, amended

Findings and Ruling in Labiche

Background information on the PCF

March 23

Guest Speaker - HIPAA and Patient Privacy - Read: OCR Privacy Rule Summary

Maryland federal district court rules on HIPAA in discovery in litigation. Take a look at this as well.

March 25

Short lecture on National Practitioner Data Bank. More info if you are interested.

Group 1

Wrongful Life and the Physician Patient Relationship - Pitre v. Opelousas General Hosp., 530 So.2d 1151, 74 A.L.R.4th 777 (La. 1988), rehearing denied (Oct 20, 1988)

March 30

Guest Speaker - suing and defending state institutions. Slides for the presentation.

April 1

Movie - AIDS in the Blood

April 6

Group 2

Follow up to suing and defending the state - What are discretionary functions?

Federal - Berkovitz by Berkovitz v. U.S., 486 U.S. 531 (1988) - guide

Louisiana - Gregor v. Argenot Great Central Insurance Co., 851 So.2d 959 (La. 2003)

April 8

AIDS law discussion - no assigned reading, but think about the movie that you watched. - Slides

April 13

MMWR report on screening for West Nile in blood

Group 3

General policy considerations for products liablity in health care

Cafazzo v. Central Medical Health Services, Inc., 668 A.2d 521 (Pa. 1995)

Guide to Cafazzo

Group 4 - we may not finish this case but we will try.

David v. Our Lady of the Lake Hospital, Inc., 849 So.2d 38 (La. 2003)

April 15

Study day, no class.

April 20

Access to Emergency Medical Care

Group 1

Emergency Medical Treatment and Active Labor Act - 1395dd

Review the statute carefully.

Group 2

Burditt V. U.S. HHS, 934 F.2d 1362 (CTA 5th 1991)

Guide to Burditt V. U.S. HHS, 934 F.2d 1362 (CTA 5th 1991)

April 22

Group 3

Summers v. Baptist Medical Center Arkadelphia, 91 F.3d 1132 (8th Cir. 1996)

Guide to Summers v. Baptist Medical Center Arkadelphia, 91 F.3d 1132 (8th Cir. 1996)

Group 4

Coleman v. Deno, 832 So.2d 1016 (La.App. 4 Cir. 2002)

 

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