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

Hospital Records and Peer Review

Title 44 7. Hospital records

Which facilities are covered?

Which records are covered?

What are the limitations on access to the covered records?

What are exceptions to the access limitations?

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

What is the impact of limiting or denying privileges for a hospital based physician?

Why do we want hospitals to review privileges and make these determinations?

Why is it left to the hospitals instead of state agencies?

What are the conflicts of interest for the hospitals?

What are the conflicts for the medical staff members doing the review?

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

Smith v. OLOL:

What is the business relationship of the other surgeons to plaintiff?

Why use an outside group instead of the other surgeons on the medical staff?

Why could this be an antitrust issue?

What did the district court do with plaintiff's action?

Why is this critical to protecting peer review actions?

How can you use legal process to intimidate even if you do not think you can ultimately win?

What is the standard for immunity in the Health Care Quality Improvement Act?

Why does the court analogize the peer review privilege to the privilege in defamation in suits arising out of the employer-employee relationship?

What are the elements of this privilege?

How do peer review proceedings satisfy this?

Who has the burden of establishing malice or lack of good faith?

The hard question becomes, "What is adequate proof of malice or bad faith?"

What if the defendants do not like the plaintiff?

Is that alone malice?

What if they are competitors of the plaintiff?

Is that alone enough to defeat good faith?

What if the peer review action also benefits the defendants - perhaps by removing a competitor?

Is that alone enough to get plaintiff to the jury?

Why does the court put such strictures on plaintiff's ability to survive summary judgment?

How can the defendants defend against charges that the peer review decision had other motives and was thus not in good faith? [para 90]

Vicarious Liability for Intentional Torts

Explain the difference between vicarious liability and liability based on failure to screen or supervise employees.

When will a hospital be vicariously liable for employee intentional torts? For physician intentional torts?

What is the test in LA for vicarious liability for intentional torts in general?

Is it different from the standard for negligent torts by employees?

Medical Malpractice Act

You should know the basic reforms of the act and how they affect medical malpractice litigation: 1) cap on damages; 2) medical review panel; 3) 1 and 3 year prescription; 4) ad damnum clauses.

What is the quid pro quo in the MMA that balances the cap on damages?

How and when do you request a medical review panel?

What happens if you file suit without requesting a panel?

What are the possible rulings of the panel?

How long does the panel have to rule?

What happens if they do not meet the deadline?

How is the panel used at trial?

Can you go to trial if the panel rules against your client?

Explain how the future medical care costs are paid under the MMA.

Who manages the costs?

What are the court's and panel's role as regards future medical costs?

Which providers does the MMA cover?

What is a qualified provider and how do you get to be one?

What is the difference between the first 100k coverage and the second 400k coverage?

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

What is the significance of a $100,000 settlement by a qualified provider in a medical malpractice case?

What was the problem with the settlement in the Ginn case?

Why should it matter who pays the 100K?

What can the fund contest after a $100k settlement?

What is comparative fault?

What system of comparative fault does LA use?

How is comparative fault used in litigation with fund over payment of a award?

Review the slides on prescription and make sure you understand the one and three year rules and the other issues in the slides.

What is the continuing tort exception to prescription?

What is the continuing relationship exception to prescription?

How do you tell when either one ends and prescription begins to run?

Does the MMA allow either of these?

Are they allowed for other professionals, such as lawyers?

EMTALA and Access to Emergency Medical Care in LA

What does EMTALA stand for?

What does EMTALA require a hospital to do for every patient who presents for emergency medical care?

What other legal duties are triggered when the hospital does a screening exam?

What type of discrimination does EMTALA prohibit?

What are the requirements if the patient is in need of emergency care?

What must be done if the hospital wants to transfer the patient?

What are valid reasons for a transfer?

What is the private cause of action in EMTALA?

Who may the patient sue?

What court?

How does the MMA apply to EMTALA claims?

What are the federal sanctions for hospitals and physicians?

What does a plaintiff have to show to make an EMTALA claim?

Why did the plaintiff in Summers fail to state a claim?

What is the difference between refusing emergency care because the screening exam was negligent and because the hospital does not want to treat someone without money?

What was the order of passage for the LA Medical Malpractice Act, the LA anti-dumping act, and EMTALA?

Why does the order matter for the LA laws?

Who does the LA anti-dumping law apply to?

What does it forbid?

What is the sanction for violations?

Remember Hill-Burton?

What does the court say EMTALA requires of hospitals?

What is the hypo from Power v. Arlington Hosp?

What is the statute of limitations for EMTALA?

Can it be tolled?

What does EMTALA say about preemption of state law?

What is the formula for analyzing preemption?

Does EMTALA explicitly preempt all related state laws?

What does it preempt?

How does the medical review panel cause a conflict between state and federal law?

Is there a conflict between the state and federal laws in all cases?

Does it matter if there are some cases where there is no conflict?

Why did the LA SC reject the tort of intentional patient dumping?

Bad Blood

Make sure you understand the issues in the slides titled: Liability for Bad Blood in Louisiana.

You are not responsible for the material in the slide set titled: Blood-Borne Illness: Hepatitis, HIV, and Uncertainty.

Products

What are the four ways a product can be unreasonably dangerous under the LA products liability act?

Which covers plaintiff's claim?

Does the LPLA control all strict liability claims for products?

What does plaintiff have to show to maintain a failure to warn claim?

Why does the worker's compensation act have an exception for intentional torts?

Why does the LPLA not exempt intentional tort claims?

Defendant in Stahl claimed that LA law says that the warning is sufficient as a matter of law if the side-effect is mentioned. Why does the court reject this?

Why is the warning sufficient as a matter of law if the warning mentions the side-effect and the treating physician says he understood the risk?

What if the treating physician studies the literature and understood the risk, even it was not mentioned in the package insert at all?

What is over-promotion of a drug?

How can over-promotion undermine the warnings on a drug, thus making it defect, i.e., the Stevens case?

Do not worry about Perez and Cafazzo.

Prenatal torts

What is wrongful birth?

Who can bring claims?

What damages are allowed?

How is the modified if the physician's negligence does not cause injury to child?

What is wrongful life?

Who can bring claims?

What do the courts say about wrongful life?

When does prescription start running for claims for prenatal injuries brought by the child?

When do claims for prenatal injuries start to run for claims by parents?

That is enough!

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