Health Care Torts - Spring 2006
Study Guide - Part I of two parts

Informed Consent

What are the two standards for determining what a patient should be told?

What are the policy implications of each standard?

When do these standards not matter?

Which standard does LA use?

What is the lead LA case?

What does the plaintiff have to prove to establish causation?

What if the patient has special medical issues, such as being a concert pianist? How does this affect disclosure?

What if the patient refuses what the physician believes is necessary medical testing?

What is the LA standard for a consent to testing?

What if the patient refuses what the physician believes is necessary medical care?

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

How does your analysis change in LA and why?

What does Arato tell use about the nature of what needs to be disclosed to the patient?

Why did the physician's disclosure probably not matter in Arato?

What does Arato tell use about how the defendant can establish that there was informed consent even if the physician did not tell the patient the relevant risks?

What is unique about the ruling in Lugenbuhl? (what recovery does it allow that is not allowed in other states?)

How does the MMA affect an informed consent claim in LA?

When can the plaintiff make a battery claim?

What is the therapeutic exception?

Why is a bad choice for a defense?

What should the physician do if he thinks the therapeutic exception may be at issue in a given case?

Medical research and unorthodox treatments

What does a physician in California have to tell a patient about unorthodox treatments?

What is the informed consent issue in Moore v. Regents (spleen case)?

What other legal duty did the defendant breach in Moore v. Regents (spleen case)?

How might Moore v. Regents (spleen case) be decided in LA? (Think about the remedy in Lugenbuhl)

What does People v. Privitera tell us about a person's constitutional right to drugs?

What was withheld from the patient in the Cleveland Clinic case?

Why would researchers withhold this information?

How did the court apply informed consent in Cleveland Clinic?

Is this good policy?

What are the potential downsides to the ruling in the Cleveland Clinic case?

What is the difference between therapeutic and non-therapeutic research?

Which was at issue in the Grimes case?

How do the legal standards for consent to participation in research differ for children between the two types of research?

What is the Nuremberg code?

Is it US law?

How and why was it used in Grimes?

What was the experiment in Grimes meant to study?

What is the public policy dilemma in Grimes?

How did the court say that consent must be obtained in research such as that being done in Grimes?

How will this affect the sort of research at issue in Grimes?

What was the risk to the children in Grimes?

What was the canary in the mine example the court used?

Standard of care

What is the locality rule?

Is it the law in LA?

What did the court find would be the effect of using the locality rule in LA?

What is the difference between locality rules for physicians and hospitals?

Do all hospitals have to have the same equipment and services?

What are the rules for allowing an expert witness to testify in a med mal case in LA?

What are some of the examples the LA courts give of situations where no expert testimony is needed to establish medical malpractice?

Is there federal common law?

Where does the court look for law in a Federal Tort Claims Act lawsuit over medical malpractice?

What is plaintiff's prima facie case for medical malpractice in LA?

Fusilier and Jones both dealt with laproscopic surgery

What was plaintiff's claim in each case?

How did the medical facts change between the cases?

How did this change the legal outcome?

Why did the appeals court overrule the jury in Fusilier?

What are the standards for an appeals court to overrule a jury and substitute its own ruling?

What does La. R.S. 9:2794, analyzed in Jones, require plaintiff to prove?

What is the LA statutory requirement that parallels EMTALA?

How does that come into play in Hastings?

Sort out the hospital's liability for McCool and Gerdes.

What is the legal relationship between hospitals and medical staff members?

When are hospitals liable for the actions of medical staff members?

What is the standard for deciding if medical staff members will be treated as employees of the hospital? (Shah)

What documents would you want to see?

Is this judged from the patient's point of view or the hospital's point of view?

Why does the point of view matter?

What are the hospitals duties as regards the quality of care delivered by medical staff members?

What was the legal document that bound Gerdes and McCool to the hospital?

What is lost chance?

Why was it at issue in Hastings?

What is the LA way of handling lost chance?

How do you calculate lost chance damages in LA?

What are the limits on the hospital's defense that its staff where just following the physician's orders? (Bossier)

What aspects of hospital care are the hospital employees responsible for?

What are the standards for liability for non-medical injuries, as happened in Lopez?

Are non-medical injuries under the MMA?