Medical Malpractice and
Licensure
Sheldon F. Kurtz
The Nature and Extent of
Medical Error




How rampant is medical error?
•
•
•
The Harvard Study (180,000 per year)
The 1999 Institute of Medicine Study (100,000 per year)
Three jumbo jets going down every 2 days
Does the data make your nervous about your doctor?
Is there too much medical litigation?
Does the data suggest reasons for physicians to be
frustrated over malpractice litigation?
•
•
Harvard found too many of the wrong persons recover
Persons with most severe injury undercompensates
Saks Study



A negligent doctor who causes injury has a
probability of sued sued of 3 out of 100.
A non-negligent doctor has a probability of
being sued for a nonnegligent injury of 13 out
of 10,000.
Thus, for every malpractice claim in response
to a negligent injury there are 15-30
malpractice victims who bring no suit but there
are 4-5 claims brought by non-negligently
injured patients.
How the Law Effects Quality of
Care



Medical malpractice
Licensure
Certification
The Donabedian Model To
Access Quality Care




Structure
•
Focus on underlying capacity to deliver care (licensure, brick
and mortar)
Process
•
Studies process through which care delivered (focus on
procedure by which health care delivered)
Outcome
•
Did patient get better when patient should have gotten better
Malpractice begins with outcome but largely looks to
Process to find negligence
Elements of a Medical
Malpractice Case

The Applicable Standard of Care
• Ordinary and Prudent Physician would have
•
•
•
done under the same or similar circumstances
Breach of the standard of care
Injury and
Proximate Cause between the breach and the
injury
McCourt v. Abernathy


What are the facts of this case?
•
•
•
•
•
•
Failure to properly diagnosis septicemia
Failure to timely order diagnostic tests
Failure to realize seriousness of deteriorating condition
Failure to timely seek appropriate consultation
Patient died
Expert testified that defendant’s conduct was below the
standard of care
What does the court hold?
•
Charge (on page 316) was correct
Locke v. Pachtman





What are the facts of this case?
• Broken needle case
Why is expert testimony necessary?
• Ordinary juror not equipped by common knowledge or
experience to judge skill and competence of a medical service
Fact that defendant’s statement may have suggested defendant
erred not controlling because statement not related to the
standard of care
• How does court distinguish the Orozco case on page 321
• Jury’s common knowledge satisfies requirement of breach
by doctors who states he cut in the wrong place.
• Doctor’s statement about needle not of same effect
• Some contrary authority, see note 2, page 326
Liability of resident vs. attending physician
Negligent supervision
The Custom-Based Standard of
Care



What is the medical custom standard
and how does it differ from ordinary
negligence law?
Why does the law defer more strongly to
professional standards here than
elsewhere?
Is the custom standard meaningful or
coherent?
Summary of Notes—Page 326332





Error in judgment rule
Standard of care for residents, specialists and
consulting and supervising physicians
Availability of punitive damages
Variations in the verbal formulation
•
•
•
Ordinary careful and prudent physician
Reasonably prudent, minimally competent physician
Good medical care
Absence of data to support conclusion of what
average or prudent physician would do
Variations in the Standard of
Care—Jones v. Chidester

Two schools of thought
• What constitutes a school?
• A “considerable number”
• Respected, reputable and reasonable

What factors affect variation in practice?
Locality vs National Rule-Chapel
v. Allison




What is the locality rule (page 337, 1st
paragraph)
National standard
Why have courts abandoned the locality
standard—at least for specialists?
Should a specialist in Iowa City and Dubuque
be held to the same standard?
•

Economic constraints
What is the practical effect of one standard
over another?
Economic Malpractice—Page
349





Does the standard of care fall for municipal hospitals?
Does the standard of care allow for different approaches to
the practice of medicine based on paying status?
How does the standard of care fit in with the need for
research and experimentation?
• Does it penalize the innovator or researcher?
• Relationship to informed consent law?
How does the standard of care react to specialization?
Is the standard affected by cost-cutting mechanisms of
HMOs
Locke v. Pachtman-A Reprise


Plaintiff’s attempt to use res ipsa fails
To succeed, plaintiff must establish that
•
•
•
•
The event was of a kind that ordinarily would not have
occurred absent negligence
The injury must have been caused by an agency with
the defendant’s exclusive control
Injury must not have been due to voluntary act or
contribution of plaintiff and
Evidence of the true explanation of event must be
more readily accessible to defendant than to plaintiff.
Notes 371-374-Avoiding Experts




Common knowledge
•
Jury makes finding based on its own experience and
knowledge- Some expert testimony required but jury
can fill in gaps from its common knowledge
Res ipsa loquitur
•
No expert testimony required
Negligence per se
•
Can actually result in a directed verdict
All of these shift focus from “prudent physician”
to what jury thinks is reasonable.
Notes 371-374-Avoiding Experts

Res ipsa and multiple defendants
• Where there were multiple defendants who
were all present in operating room when injury
occurred, court shifts burden to defendants to
come forward with evidence as to who or who
was not responsible
Notes 371-374-Avoiding Experts

Legal effect:
• Res ipsa case still goes to jury for ultimate
•
•
decision
Court must instruct jury to find liability against
at least one defendant
Creates rebuttable presumption or shifts
burden to defendant
Helling v. Carey



What are the facts of this case
Given that the medical experts agree
defendant complied with the standard of
care, how can the plaintiff prevail?
What is the potential effect of the holding
on the practice of medicine?
Sullivan v. O’Connor





What are the facts of this case?
Why are courts skeptical about contract
claims?
What evidentiary benefits flow to a patient
claiming a breach of contract?
How does a contract claim impact on the
measure of damages?
How might the contract approach impact on
HMOs?
Franklin v. Gupta



What are the facts of this case?
Was the surgeon personally negligent?
What theories are there to hold surgeon
liable for the negligent acts of others?
• “Captain of the ship doctrine”
• Borrowed servant doctrine (also excuses
•
hospital and shifts liability to surgeon)
Professional corporations
Strict Liability

Should there be strict liability in
medicine?
Institutional Liability


Recall structure of hospital and its
relationship to its medical staff
If doctors are uniformly insured, why is
there such a desire to sue hospitals?
Schloendorff v. Society of New
York Hospital


What are the facts of this case?
What defenses are offered by the hospital?
•
•
•
•
Charitable immunity doctrine
Hospital not responsible for acts of physicians who are
not employees of the hospital
Nurse is agent of doctor not hospitals as her services
are for docs.
Even if nurse was agent of hospital, she acted
reasonably
• Nurses don’t question doctors
Adamski v. Tacoma General
Hospital


What are the fact of this case?
Accepting that the doctor was an independent
contractor, what theories does the court
suggest for holding the hospital liable?
•
•
•

Nondelegable duty rule
Inherent functions doctrine
Ostensible or apparent agency
Do these theories apply to office-based doctors
such as surgeons, internists, etc.
Darling v. Charleston Community
Memorial Hospital



What are the facts of this case?
What did the court hold?
How does Johnson fit?
Johnson v. Misericordia
Community Hospital


What are the facts of the case?
Negligent selection vs. Negligent
supervision
Summary of Notes, Pgs. 497-505


Direct vs. vicarious liability results in holding
that hospital had a duty of care to its patients
independent of the duty owed to patients
through members of its medical staff.
Direct liability unlike vicarious liability does not
require a showing that independent-contractor
doctor had either actual or apparent authority
Summary of Notes, Pgs. 497-505

With direct liability comes a new
rationale for hospitals to assert more
control over their medical staffs
Summary of Notes, Pgs. 497-505

Darling and its progeny identify two types of
negligence with respect to which hospital can
be held liable for acts of independentcontractor physicians:
•
•

Negligent selection
• See Johnson case
Negligent retention
• Assumes contemporaneous supervision of daily
treatment decisions as they are made
Hospital risk management programs are an
offshoot of this liability
Boyd v. Albert Einstein Medical
Center



What are the facts of this case?
What does the court hold?
Facts to establish ostensible agency
•
•
•
•
•
Patient paid fees to HMO not doctor
Patient selected doctors from list provided by HMO
HMO screened the primary care providers
HMO providers required to comply with list of rules in
HMO contract
HMO primary doctors had a gatekeeping function
Wickline v. State


What are the facts of this case?
While the court ultimately concluded that
the managed care organization did not
corrupt the medical judgment, what is
the important message of Wickline?
Summary of Notes, Pgs. 517-523



The particular components of a MCO may affect how courts
look at them in determining whether to impose liability.
• Vicarious liability
• Direct liability
In some states HMOs are immune from liability by statute
In Wilson v. Blue Cross of Southern California finding insurer
could be liable stated “civil liability for a discharge decision
rests solely within the responsibility of a treating physician in
all contexts is dicta.”
Enterprise Liability
Dukes v. US Healthcare, Inc.





What are the facts of this case?
What is ERISA?
What is the significance of preemption?
What issue underlies the question of
whether this case can appropriately be
removed to a federal court?
What is the issue in this case?
Professional Licensure
Professional Licensing

What function does licensing serves?
• Status
• Market exclusion
• State sanctioned monopolies
• Quality control
• Protection of public health
• Increase cost of entry
Physician Licensure




MD
DO
Board Certification, not required
Distinguish from credentialing
State v. Miller

What are the facts of this case?
• Charged with practicing medicine without a
•
•
•
license
Defendant claims he never held himself out
as a doctor
He did, however, let customers believe he
could diagnose and cure ailments
Routinely prescribed and furnished medicines
Unlicensed Practice of Medicine



Criminal
Defining Medical Practice
If you tell me you have a headache and I
tell you to take 2 aspirins, am I engaged
in the unauthorized practice of
medicine?
Iowa Code 148.1
For the purpose of this subtitle the following classes of
persons shall be deemed to be engaged in the practice of
medicine and surgery:
1. Persons who publicly profess to be physicians or
surgeons or who publicly profess to assume the duties
incident to the practice of medicine or surgery.
2. Persons who prescribe, or prescribe and furnish
medicine for human ailments or treat the same by surgery.
3. Persons who act as representatives of any person in
doing any of the things mentioned in this section.
Unlicensed Practice of Medicine


Is their a constitutional right to provide
care?
Are patient’s constitutionally permitted to
obtain medical care from anyone, even
non-licensed persons?
Other Health Care Professionals




Midwifery
Nurses
Physician Assistants
Telemedicine
Modi v. West Virginia Board of
Medicine



What are the facts of this case?
What issues are raised by the doctor in
this appeal of the Board’s action?
What does the court hold?
Problem, Page 954