Climate Change Project

Table of Contents



Health Care Torts 5458
Professor Richards
Fall 2009

Study Questions Part 1 (to bad blood)

Study Questions Part 2 (bad blood to the end)

Exam Blog - As questions come up about the exam, please email them to me - richards@lsu.edu - so that when I answer them, I can post the answer to the blog so that all the class can benefit. I am not here to answer the study questions for you, but if you get really stuck, send me an email. Be sure to check the blog a few times leading up to the exam, and the evening of the exam. I will cut off questions at 9PM the night before the exam.

NOTICE - UDATED CLASS TIME: 1:50 to 3:00 on Tuesday, 1:50 to 3:20 on Thursday.

All the materials for this course will be on the WWW or will be handed out in class. We will also follow events in the news, and topical information will be posted on the WWW up until class time. You should check the site the night before class and the morning of class. If you want to send me email, use my direct email address: richards@lsu.edu


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. NB - How to Mark Up a Case

18 August

Introductory Lecture - no reading assignment. Slides

20 August

Finish Introduction Slides / Total health care spending / Medicare 2008 Factsheet

Good health costs data


25 August

Finish discussion of health care finance. Discuss health care reform efforts. No new slides.


New Yorker article on differential health care costs. The heart of med mal is deviation from standard of care, which makes it very interesting to see what standard care really means. Read this carefully and think about incentives that might lead to unnecessary care. Remember, one of the greatest risks to patients is dangerous care they do not need. No matter how good a heart surgeon you are, every patient who gets an unnecessary operation is worse off, even if it is necessarily a good med mal case.

The illegal immigrant medical care problem

27 August

We are going to try an experiment - a joint class with Prof. Levy's Torts I class. (Info here) The subject is an introduction to the torts business, and we will read a case on contingent fees: Reed v. Verwoerdt, 490 So.2d 421 (La.App. 5 Cir. 1986)

We will also discuss the Damages worksheet that was already assigned.

1 Sept

Time to start suing people!

Start discussion of basic med mal prima facie case

3 Sept

Pesantes v. United States, 621 F.2d 175 (5th Cir. 1980) - Study guide

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


Breaking news: Pfizer agrees to $2.3 billion settlement / more Pfizer info / Zyvox off label warning letter

8 Sept

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)


10 Sept

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

We are going to read Lugenbuhl closely because it is the key LA case. We may not finish Arato, but should start it.

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

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

15 Sept

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

17 Sept

First a quack remedy case, then a little medical research subtrafuge.

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

Stewart v. Cleveland Clinic Foundation, 136 Ohio App.3d 244, 736 N.E.2d 491 (Ohio App. Dist.8 12/06/1999) - Study Guide (be sure to read the study guide as you read the case, it indicates which portion to skip)

Please read the cases - this course depends on your seeing how to deal with facts, not just black letter law.

22 Sept

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


Classic case on conflicts of research.

I did not realize it, but Thursday was the 10 annaversy of the most publicized research informed consent case in the US. See this editorial.

For the curious, What the Doctor Didn't Say.

24 Sept

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. Read the background materials as well as the case. Make sure you understand the lead paint issues and why the study was done.

These are the applicable international codes as a reference:

Nuremberg Code

Declaration of Helsinki

29 Sept

Proving Standard of Care:

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, related procedure, but done 9 years later, after national standards have develped. Note how the proof of standard of care has changed as the procedure has become more common.

Gallbladder anatomy - Info on laproscopic cholecystectomy - Injury rates and litigation

1 Oct

Med Mal Movie Day - court TV, nothing exciting. For good med mal movies, if a little melodramatic, rent The Verdict and The Hospital.

Oct 6

Analyzing a med mal case

Oct 13

Bossier v. DeSoto General Hosp., 442 So.2d 485 (La.App. 2 Cir. 1983)

Standards for medical independent contractors - Powell v. Fuentes, 786 So.2d 277 (La.App. Cir.2 2001)

Hospital liability for non-medical claims - Lopez v. State, 721 So.2d 518 (La.App. Cir.3 1998) - Concentrate on the law, not the plaintiff's silly case.

Oct 15

Institutional liablity for intentional torts by employees

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)


20 Oct


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)

Good article on paying physicians

22 Oct

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

I am pushing Coleman to the next class.

27 Oct

Coleman v. Deno, 813 So.2d 303 (La. 2002) - review guide (will be revised a bit to develop the MMA better)

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

29 Oct

Guest Speaker - slides

Cases as background: Samaha, 977 So.2d 880; Arrington V. ER Physicians, 940 So.2d 777; Arrington v. Galen Med, 947 So2d. 724 and 970 So.2d 540; Taylor v. Clement, 970 So.2d 545; LaCoste v. Pendleton, 966 So2d 519

3 Nov

Administrative Compensation for Medical Malpractice - This is my article Mr. Cosse refered to. We have discussed many of the points in it, this is for your own edification.

Information on the National Practitioner Databank

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. The study guide will help orient you. We are reading this for the law but also to get a sense of the bitterness of these cases.


5 Nov

Reference case: Immunity under the Health Care Quality Improvement Act - Bryan v. James E. Holmes Regional Medical Ctr., 33 F.3d 1318 (11th Cir. Fla. 1994) - Guide - we are not reading this case for class and it will not be on the exam, but it is the current application of the federal law. You should be aware of it if you run into a peer review case.

Bad Blood - Introduction to hepatitis, HIV, and liability for bad blood. No readings.

10 Nov

Bad blood in LA

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)


12 Nov

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


Old Exam -- warning - we covered different cases

17 Nov


Continue discussion from last class, add:

Reyes v. Wyeth Laboratories, 498 F.2d 1264 (5th Cir. 1974)

Together these cases define the learned intermediary doctrine, which is the key issue in drug liability, and then show its limitations in the modern medical marketplace.

19 Nov

Public Health Law 101

West Nile from Blood - LA

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

Vaccine Compensation Fund Practice - how to file a vaccine injury claim and the rules for compensaiton.

Autism Case Discussion

Appeal of the Master's Decision in the Autism Cases - read 26-27, and 48-end.

Study Questions Part 1

24 Nov

Wrap up day - no new readings. We will look back over the course, think about the future of health care torts, and limitations of the tort law as a remedy for low quality health care.


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