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Health Care Tort Law Winter 1999 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. Since some members of the class are taking the exam early, it is essential that no one talk about the exam until after Friday, 7 May 99, at 1 pm. Violating this rule will result in failure in the class and may result in dismissal from law school.

1)

 a) What did Morton discover?

b) What disease did Semmelweis study?

c) What technique did Lister develop?

d) What branch of medicine did these discoveries transform and why?

e) What was the effect of this transformation on the organization of medical institutions?

2)

 a) When HHS proposes a new administrative rule under rule and comment rule making, where is the proposed rule officially published?

b) Where is the rule codified when the rule making is complete and the rule is adopted?

3)

 a) What is the type of legal relationship between most physicians and hospitals?

b) What state law doctrine is responsible for this type of organization?

c) What document governs the terms of this relationship?

4) 

a) Did the plaintiffs sue the physician in Sterling Drug, Inc. v. Yarrow, what was plaintiff's strategic thinking, and what was the drug (either generic or trade name)?

b) Did the plaintiffs sue the physician in Feldman v. Lederle Laboratories, what was plaintiff's strategic thinking, and what was the drug (either generic or trade name)?

c) Did the plaintiffs sue the physician in Stevens v. Parke, Davis & Co, what was plaintiff's strategic thinking, and what was the drug (either generic or trade name)?

5)

 a) Malpractice plaintiff is suing Doc Jones who practices at Holy Name hospital. Plaintiff wants the hospital's peer review committee minutes. Does plaintiff get them and what is the controlling statute's citation?

b) Doc Jones wants the same minutes for his defamation suit against the hospital. Does he get them and what is the statute and subsection cite?

6) Explain the learned intermediary defense and what the plaintiff must show to defeat it in a products liability claim against a drug manufacturer.

7)

 a) What are the elements of a products liability case in Missouri (not failure to warn)?

b) What are the elements of a products liability case in Missouri when the case is based on failure to warn? 

8) Holy Name hospital has a computer controlled x-ray therapy machine. The manufacturer warned them that it was not Y2K compliant, and that they would have to get someone else to fix it because the manufacturer was out of business and had no assets. Holy Name hired Acme to write a new program for the computer in the machine. Acme delivers the code on a CD-ROM and installs it into the machine. On Jan 1, 2000, they treat Mary with the machine. The program is defective and Mary is injured. 

a) What are plaintiff's and defendant's argument as regards the product/service distinction in Mary's products liability suit against Acme?

b) What is the hospital's defense in Mary's products liability suit against it in a state that recognizes Cafazzo?

c) How does this change in a state that recognizes Mulligan? 

9) What are the elements of a claim for failure of informed consent? Explain how California and Missouri differ, if they do, on what the plaintiff has to prove as regards disclosure and causation. Do not use the subjective/objective nomenclature but just explain it in plain language as you would for a client. 

10) 

a) What was the Wollen court's reasoning in ruling that a lost chance case must be brought as a survivor action?

b) What statute did plaintiff file under in Baker, and what the plaintiff's expert say in Baker that allowed the Baker court to sustain this action?

11)

 a) What are the steps in getting a new drug (new chemical entity) approved by the FDA?

b) What is "off-label" use and how does this FDA prevent physicians from doing it? 

12) Write a client letter, including a flow-chart, explaining the EMTALA requirements to a hospital administrator. Be sure to discuss who can get sued and for what, and what administrative sanctions can be imposed on hospitals or physicians who do not comply with the terms of EMTALA. 

13)

 a) What test did the plaintiff refuse in Truman v. Thomas and why did the defendant say she refused it?

b) What is the therapeutic exception discussed in Moore?

c) What cause of action did the court accept in Moore?

d) What was the battery issue in Wilkerson v. Mid America?

e) Why is the Bienz case important?

f) Why did the court decide that the nurses in Sermchief were not guilty of unauthorized practice of medicine?

g) What is Guillain-Barre syndrome, what drug was it associated with in our cases, and why did the manufacturer get off when the patient got Guillain-Barre syndrome?