Exam Blog

Health Care Torts- Fall 2009

Questions are indented, my answers are flush. New material is at the top. 9:10PM blog closed.

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> I'm wondering a few things:
>
> Are non-medical injuries covered under the MMA?

You have to read the cases too.:-) Hint - Lopez

> What is the impact of denying or limiting the privileges
> under 44:7 for
> a hospital based physician?

This is a common sense question: You are a surgeon operating at OLOL without privileges anywhere else. You have a boat payment due, but your privileges have been limited. How about when you try to get on at Baton Rouge General - think it will care?

> Can a hospital protect otherwise unprotected records by
> sending them to
> peer review committee? To their lawyer?

You client just came in with the murder weapon and he wants you to put in your client files to keep the DA from getting it. Will that work?:-) In general, can you transform an unprivileged document into a privileged document?

> What changes in the nature of medical practice allow physicians to
> escape this review (peer review, I'm assuming)?

Right, hospital peer review - what if the docs start their own out patient surgery center?

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> Can you explain the difference in the locality rule for
> physicians and hospitals, I was having trouble finding this
> distinction in my notes and in the cases

Let's split the question - does LA recognize the locality rule for physicians at all? Is it OK to for a doc to be dumber in Eunice? (We are talking theoretically here.)

Then, how are hospitals different from physicians - would you expect the Eunice hospital to have the same facilities as OLOL in Baton Rouge? Would the hospital be negligent if it did not?

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> From Powell, I got that the important question is whether, from the
> nature of the relationship, the right to do so exists, not whether
> supervision and control was actually exercised. [Powell, 28]

So, is this something the patient could have known about? What about the hospital? Can the hospital control this outcome - subject, of course, to other regulatory requirements? In practical terms, does it really matter in LA what the result is?

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> For determining the standard for deciding if medical staff members are
> treated as employees of the hospital, you asked if this is
> judged by the
> patient's point of view or the hospital's point of view. I
> cannot find
> a clear answer, but based on Hastings, I would say that it is from the
> hospital's point of view in that the hospital writes the bylaws that
> dictate the hospital's control over the medical staff's behavior.
> However, the court there pointed out that the hospital held itself out
> to the public as furnishing ER service on a 24 hour basis [paragraph
> 32], so does that mean that the patient's perception matters? Or does
> the patient's perception matter only in regard to an expectation that
> someone will treat them if they go to that facility in an emergency
> situation, without implicating who is responsible if something goes
> wrong?

What about Powell v. Fuentes, 786 So.2d 277 (La.App. Cir.2 2001)? How does that affect your analysis? Is it really a yes or no question?

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> You ask What parts of the MMA apply even if you are not a
> qualified health care provider. I am not sure about this,
> and believe me I have tried to figure it out on my own. I
> thought the whole point of the MMA and the PCF was that they
> were opt in. ... Is this a
> trick question?

No trick. Look at David v. OLOL.