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Health Care Torts
Professor Richards
Spring 2006

Exam blog

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

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. 2004 Exam and Key - for form only, content changes year to year to year. How to Mark Up a Case

January 10

Introductory Lecture - No reading assignment - slides

January 12

Continue introduction. Slides

January 17

Start discussion of basic med mal prima facie case - Pesantes v. United States, 621 F.2d 175 (5th Cir. 1980) - guide

Review the prima facie case for negligence torts and the standard of care defense. Damages worksheet (will be handed out in class). slides

January 19

Informed Consent

Slides

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 24

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) - guide

January 26

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

Key issues for Lugenbuhl:

What is the causation test in LA?

Why is it an issue in this case?

What are the controlling statutes for med mal cases and how do they shape this case?

Is battery still available in a med mal case in LA?

How did the court create a breach of fiduciary duty remedy in this case to deal with the causation problem?

Is this a good solution to the problem of exposing patients to risks that do not occur?

Non-medical disclosures - ARATO v. AVEDON 858 P.2d 598 (Cal 1993)

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

31 Jan 2006

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)

2 Feb 2006

Experimental Treatments

People v. Privitera, 23 Cal. 3d 697, 591 P.2d 919, 153 Cal. Rptr. 431 (Cal. 1979)

This concerns whether there is a constitutional right to unapproved drugs. We will discuss the issues, but do not worry about the details of the FDA law.

State Bd. of Med. Examiners v. Burzynski, 917 S.W.2d 365 (Tex. App. 1996)

This is some background on Burzynski, who is at issue in the next case. Again, do not worry about the FDA law at issue, but look at the language about the problems with Burznski, the actions of the Board of Medical Examiners, and the final holding of the appeals court.

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)

7 Feb 2006

We are going to look more deeply into the application of informed consent tort law to medical research, and whether there is conflict between accepted research procedures and tort law.

Stewart v. Cleveland Clinic Foundation, 136 Ohio App.3d 244, 736 N.E.2d 491 (Ohio App. Dist.8 12/06/1999) - guide

Grimes v. Kennedy Krieger Institute, Inc., 366 Md. 29, 782 A.2d 807 (Md. 2001) - guide

The defendant's side

Grimes is a long and complex case, that reviews a lot of law. I will try to get a study guide posted by Saturday.

These are the applicable international codes as a reference:

Nuremberg Code

Declaration of Helsinki

9 Feb 2006

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.

Jones v. Hernandez, 880 So.2d 245 (La.App. Cir.2 2004)

This a follow up to Fusilier, 9 years later. Note how the proof of standard of care has changed as the procedure has become more common.

Gallbladder position

Gallbladder anatomy

14 Feb 2006

Slides

16 Feb 2006

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.

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)

Shah v. Jefferson Parish Hospital District No. 2 Parish of Jefferson, 870 So.2d 597 (La.App. Cir.5 2004)

21 Feb 2006

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

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

Slides

23 Feb 2006

Movies!

2 March 2006

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

Baumeister v. Plunkett, 673 So.2d 994 (La. 1996)

Payne v. Tonti Realty Corp., 888 So.2d 1090 (La.App. 5 Cir. 04)

7 March 2006

We are going to talk about tort reform in general and the Louisiana law this week. This class will focus on the specific issues of tort reform and possible alternatives to the tort system. This is a draft of a law review I published on the topic that will give you some background: Administrative Compensation for Medical Malpractice. Be prepared to talk about the issues in class, i.e., is there a problem with the tort system, how can it be changed, should health care providers be protected from damages, and, if so, what should society demand in return. Focus on the costs of the system and where the money goes, and possible distortions in care caused by litigation or by tort reform.

Slides

9 March 2006

Continue discussion from Tuesday

Everett v. Goldman, 359 So.2d 1256 (La. May 22, 1978) (You will need to get it from West/Lexis) - review guide

14 March 2006

Crier v. Whitecloud, 496 So.2d 305 (La.1986)

Butler v. Flint Goodrich Hosp. of Dillard University, 607 So.2d 517 (La. 1992) (same case, corrected cite)

We are reading these cases for the dissents - a majority of the Louisiana Supreme Court has found every provision of the med mal tort reform constitutional, with a very superficial rational relationship analysis. Crier is about prescription, and raises the issue of the prescription running before the patient can even discover the malpractice. Butler deals with the $500,000 cap. Starting with Crier, there are stronger dissents, reflecting a more divided court. These are the cases that deal with the parts of the law that have the biggest impact - the limit on prescription, even for minors, and the cap. Study the dissents carefully, we will discuss them in class. Think about what they are arguing, and about whether, under Louisiana, the analysis should be different than under the lenient federal rational relationship test. What in Louisiana law would support a different analysis?

Slides on Prescription

16 March 2006

In re Claim of Moses, 788 So.2d 1173 (La. 2001) - review guide

Carter v. Haygood, 892 So.2d 1261 (La. 2005) - review guide

20 March 2006

EMTALA and Access to Emergency Medical Care under LA Law

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)

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)

22 March 2006

Spradlin v. Acadia-St. Landry Medical Foundation, 758 So.2d 116 (La. 2000) - review guide

Coleman v. Deno, 813 So.2d 303 (La. 2002) - review guide

27 March 2006

Finishing up the Patient's Compensation Fund:

Graham v. Willis-Knighton Medical Center, 699 So.2d 365 (La. 1997) - review guide

Ginn v. Woman's Hospital Foundation, Inc., 842 So.2d 338 (La. 2003) - review guide

Hall v. Brookshire Brothers, Ltd., 848 So.2d 559 (La. 2003) - review guide

4 April 2006

LA Blood Shield Law found to bar Hepatis C Case - David v. Our Lady of the Lake Hospital, Inc., 849 So.2d 38 (La. 2003)

Court clarifies retroactive application of Louisiana blood shield law - Day v. Morehouse General Hospital, 865 So.2d 924 (La.App. 2004)

Slides

6 April 2006

Continue discussion additional slides

11 April 2006

Products

Stahl v. Novartis Pharmaceuticals Corp., 283 F.3d 254 (5th Cir.(La.) 2002) - guide

Stevens v. Parke, Davis & Co., 507 P.2d 653 (Cal. 1973) - guide

Perez v. Wyeth Laboratories Inc., 161 N.J. 1, 734 A.2d 1245 (N.J. 1999) - guide

13 April 2006

Wrongful birth, wrongful life, and prescription

Pitre v. Opelousas General Hosp., 530 So.2d 1151, 74 A.L.R.4th 777 (La. 1988), rehearing denied (Oct 20, 1988)

Bailey v. Khoury, 891 So.2d 1268 (La. 2005)

Slides on conception related torts

Study Guide - Part I

18 April 2006

Putting the pieces together - review and synthesis

Study Guide - Part I - Part II

 

 

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