Health Care Torts - Spring 2006
Exam Blog

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> Why does the order of enactment of La MMA, La Anti-dumping
> statute, and EMTALA matter for La laws? I'm guessing this
> has an effect on preemption, but I don't really know the
> effect that it has.

Later laws that conflict are assumed to preempt the earlier laws, and if they are consistent with earlier laws, they are an endorsement of them. If there is a conflict with EMTALA, it preempts because it is a federal law, and because it is that last law passed.

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> Does action have to filed with a medical review panel even if the
> defendant doctor or health care entity is not a qualified health care
> provider?

While we do not have a case on it, looking at the statute, it seems that if you are not a covered provider, you do not get the benefits of the panel.

> Actually, is it proper to call it filing with the MRP? Where
> actually does the piece of paper (petition?) go?

Department of Administration.

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> I'm a little confused about hospital liability for Gerdes and
> McCool negligence. If they were independent contractors, how
> is the hospital liable for their negligence. I can see how
> the duty arises from the hospital by-laws, which is reason to
> establish the doctors' negligence. However, when talking
> about vicarious liability of the hospital how do we have the
> requisite master-servant relationship necessary for finding
> the hospital liable.

There are several ways to get to vicarious liability. Master-servant depends on a quasi-employment relationship. You can also get there through ostensible agency, where the physician looks like an employee to the patient - several states impose this for ER docs, although LA uses stricter standards. The Gerdes/McCool situation depends on the special nature of their work in the ER. The hospital runs the ER and has a legal duty to provide care in the ER. The key is that is not about the hospital's liability for a physician's negligence: had McCool come in and done the case, and screwed it up, the hospital would not have been liable. However, McCool did not come in, and Gerdes did not do what he was bound to do by the hospital bylaws get a substitute. While we did not discuss this in detail in class, this is really about non-delegatable duties. The hospital had a duty to provide the care, and they cannot get out of that duty just because the contractors they delegate the duty to do not show up.

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> I am unclear about the federal sanctions for EMTALA
> violations for Hospitals and physicians. Am I correct that
> the sanction for the hospital is a fine of not more than 50K
> while the sanction for physicians is a fine of not more than
> 50K and if the violation is gross and flagrant or repeated,
> the exclusion from federal and state health care programs?
>
> I got this from a case. However, it seems like the exclusion
> from federal and state health care programs would be the
> sanction for hospitals not physicians. Am I wrong?

I am not sure if they have changed the fines in more recent regs, but the key info is that the feds can fine both the hospital and the doc, while a private person may only sue the hospital under EMTALA. Both physicians and hospitals can be excluded from federally supported health care programs. It is hard for the feds to exclude hospitals because it would reduce available care in the community, but they exclude physicians pretty frequently. Means the physician cannot bill programs like Medicare and Medicaid, or work for an organization that does.

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>     I want to make sure I am clear on LA law for bad blood (slides
> from 4/6).  Is this correct: after all the cases, etc. Louisiana
> refuses to recognize strict liability for bad blood even in cases
> where the transfusion pre-dates the adoption of the MMA or other
> Lousiana law to address the issue?

Right, because LA did not adopt strict liability until the early 1970s, and the court is unwilling to allow claims based on theories that were not yet law. So if you are before the blood shield law, you are also before strict liability, and later you are stuck under the MMA.

> Thank you. One final question I should have included with the last:
> are we responsible for knowing the case names from those slides? I've
> learned the assigned readings but want to know if I also need to
> memorize the cases you cite in the slides but did not assign for us
> read.

No, not the cases that are used in the slides but were not part of the main readings.

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> I am unclear as to whether or not the MMA allows the
> continuing tort
> exception to prescription. The Court in In Re Moses stated
> that it was
> not deciding that issue. And, Carter v. Haygood dealt with the
> continuing relationship exception. So, has the Court stated
> whether the
> MMA allows the continuing tort exception to prescription?

The real question is whether the continuing tort exception can exist in med mal cases. See paragraph 53 in Moses. The court separates continuing damages from continuing torts, pointing out that continuing damages are only continuing torts in property where a trespass can be both tort and damage. In contrast, in Page (65, et seq) there was no single negligent act but continuing malpractice in the form of the physician continuing to administer the wrong drug. Contrast this with the court's rejection of Bellard (73). Thus, if there is a real continuing tort, i.e., the physician continues to make a mistake, then prescription starts at the end of the negligent course of treatment. Otherwise, if there is a single action, but continuing damages, as in Moses, prescription runs from the time of the negligent action.

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> Why did the physician's disclosure probably not matter in Arato?
> - Does it have something to do with the doctor's fiduciary duties?

Look carefully at the case - all the doctor has to prove is that the patient knew about the risk, not that the doctor told him the risks.

> What are the hospitals duties as regards the quality of care
> delivered by medical staff members?
> - Does it depend on whether or not the doctor is considered an
> employee? Or does it have something to do with the fact that
> they have a std of care that they must adhere to independent
> of the doctor's std?

It depends on both. The hospital can be liable because the court finds that the physician is an employee, or because the physician was acting on behalf of the hospital. Look at Hastings.

> How does the MMA apply to EMTALA claims?
> - I guess I just don't know exactly what you want. The only
> example I could think of is the one from the Arlington case
> but your hint said that it didn't have anything to do with
> negligent screening.

> Does it have something to do with transfer or active labor or
> at least what case?

EMTALA covers more than screening. What are the actions you can sue for under EMTALA which could also be negligence actions? What it it about the transfer that could negligent? What mistake about the patient's condition did Burditt make? How could that be negligent and be a claim against the hospital?

> Why does the point of view of whether or not a doctor is an
> employee matter?

What does the patient in the ER think about the legal relationship between the ER doc and the hospital? Is this different from hospital's view?

> What limits did the CA court put on what has to be disclosed?

Does the physician have to tell the patient every possible risk? What is the standard for what the patient needs to be told, as opposed to telling the patient everything?

> How does your analysis change in LA and why?

Does LA use the same test as CA? Look at Lugenbuhl.

> How did the court apply informed consent in Cleveland Clinic?
> - Is it that the court looked at a tort of lack of informed
> consent to establish that there was a genuine issue of
> material fact to overrule the SJ? Or are you looking for
> something else?

The researchers said that they told the patient what other researchers tell the patient about the availability of the drug. Why did the court say this was inadequate for a real informed consent?

> How did the fact that stds for the procedure by the time the Jones case came about change the legal outcome from Fusilier?

This is not what I asked:

How did the medical facts change between the cases?

How did this change the legal outcome?

What is the answer to the first question? How does this change the evidence of the standard of care in the second case?

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> I am unsure about the rules for allowing an expert witness to
> testify in a med mal case in LA. In class you said that
> there is a case that lays it out for us. Which case are you
> talking about? Pesantes? Hastings?

Look at Hernandez.

> "How and when do you request a medical review panel?"
> - Exactly how detailed of a response are you looking for. We
> read the statute and it doesn't delineate how to practically
> do it. Are you interested in the procedural steps involved?
> We do know that the plaintiff/patient has to request the
> opinion of the medical review panel prior to filing suit. Is
> that sufficient or do you want more detail?

One of the cases laid this out. You should know when you ask - before filing the lawsuit - who you send the request to for a claim against a non-state employee or facility, and generally what you ask the panel to determine.

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> During the review you mentioned that all of the questions
> would come from the study guide. Did you mean all of the
> short answer questions or the name that case questions as well?

I tried to pick questions from most cases, even if I did not name me in the question.

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> 1. What changes in the nature of medical practice allow
> physicians to escape the peer review?

See the exam blog.

> 2. Why could Smith v. OLOL be an anti-trust case?

If the docs doing peer review or making the recommendations were competitors.

> 3. How is the decision of the peer review panel used at trial?

This is discussed in one of the cases - it is evidence, but is not binding on the jury.

> 4. What parts of the MMA apply even if you are not a
> qualified provider?

The parts that do not deal with the fund.

> 5. Can a patient sue in federal district court on an EMTALA claim?

It is a federal cause of action, so that is usually where you file.

> 6. How could an EMTALA claim also be a MMA claim?

Think about the overlap between regular malpractice and EMTALA - which malpractice claims would be EMTALA claims? Hint - negligent screen is not an EMTALA claim, but what else does EMTALA cover?

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> (1) "How does your analysis change in LA and why?"
> - First you ask about the CA court and we assume that you are
> referring to the Truman v. Thomas standard. In LA, do you
> mean that the doctor should refuse to treat the patient
> and/or not offering base-line test doesn't meet standard of care?

Is Costa really different from Truman? Is the analysis different in LA?

> (2) "What is the test in LA for vicarious liability for
> intentional torts in general?"
> - We are assuming that you are referring to the LeBrane
> factors here - is that correct?

Yes

> (3) "Is it different from the standard negligence torts by employees?"
> - We think the answer is "NO" - is that correct?

That should read: Is it different from the standard for negligent torts by employees?

While it is not entirely clear, it appears that the test for liability for employer liability for intentional torts and for negligent torts is about the same in LA. The Lebrane factors are the key.

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> The following questions are in regards to EMTALA and state statutes
> such as LA anti-dumping.
> Q. Is there a conflict between the state and federal laws
> in all cases?
> I would say no here just b/c Spradlin talks in detail about how they
> can both apply as long as there is no direct conflict of the state
> cause of action with the federal. But, I'm just inferring that from
> the test the court gives. I have no idea about all cases. Obviously,
> I'm missing the point.
>
> Q. Does it matter if there are some cases where there is
> no conflict?
>
> I don't think I understand the question. If no conflict then could
> have one trial for actions arising out same transaction or occurrence
> for med mal and EMTALA actions. It would be easier procedurally if no
> conflict. I don't understand the implications.

These two questions get to the analysis that the court used to decide whether the MMA was preempted by ERISA. They found that there would be some cases where there was no conflict, i.e., you get your ruling back from the panel before the ERISA limitations ran. However, since they decided that since there would be a conflict in some cases, this would be an inconsistent rule. To solve this, they held that the review panel requirement was preempted in all cases.

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> In the case, there seems to be several different groups of surgeons – I interpret your questions to refer to the Committee on Standards and Ethics for the Society of Thoracic Surgeons, a group of independent surgeons with whom Smith had no business relationship. If you are asking about the other committees, I’m not sure which of his colleagues were on the “executive committee” and the “ad hoc investigational committee” and don’t know their “business relationship.” 

> I am therefore also a little confused about the antitrust issue – I thought the antitrust issue was the threat that his competitor(s) on the committee could be considered to be conspiring to prevent a doctor from practicing his profession. But I thought that was why they got the independent group? I also thought that Smith’s competitor (Dr. Berry) had only minimal involvement in the process, i.e., answering questions from the other committees. Is there an additional antitrust issue involved with getting an outside group?

"Why is this an antitrust issue" refers back to "what is the business relationship" - the other surgeons on the staff are plaintiff's competitors, thus there could be an anti-trust issue, or just a conflict of interest issue. Going to an outside reviewer solves this, at least it should.

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These questions refer to Moore v. Regents (spleen case):

What is the informed consent issue in Moore?

What other legal duty did the defendant breach in Moore?

How might Moore be decided in LA? (Think about the remedy in Lugenbuhl)

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What changes in the nature of medical practice allow physicians to escape peer review?

This refers to phyisicans practicing in outpatient surgical centers which they own - they can do surgical procedures but not be subject to hospital peer review.

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