Thursday, March 5, 2009

Dr. House is SO unprofessional

Do we use a local or national standard of care for medical malpractice?

Morrison v. MacNamara (1979)

Facts
Mr. Morrison was in need of a urethral smear. The smear can be administered while the pt is standing, sitting, or lying down. Morrison told MacNamara, the lab technician, that he was feeling faint. MacNamara then administered the smear with Morrison standing. Morrison fainted, hit his head, and suffered significant neurological damage.

The jury in this malpractice/negligence case was instructed to use a local standard of care. Morrison argued unsuccessfully for a national standard of care. Morrison lost, and the case was appealed.

Question
Should the jury have been instructed on a national standard of care?

Holding
Yes

Reasoning
In the past, a local standard of care was used to avoid unfairly burdening rural doctors. The thinking was that rural doctors did not always have access to cutting-edge technology, staff, and education. Progress in communication, transportation, and technology makes this rule outdated. Furthermore, continuing the local standard of care gives rural doctors no incentive to improve the quality of their treatment.

And the winner is…
There were no winners. Morrison recovered damages, but he also had his urethra smeared.

Notes
Ironically, this was a metropolitan facility that marketed itself as one of the best in the nation.

What is the deal with informed consent?

Scott v. Bradford (1979)

Facts
Ms. Scott was urged by Dr. Bradford to have surgery. The doctor did not inform her of possible complications. Following the surgery there were significant complications, and three more surgeries were needed. Scott sued, alleging that she would not have elected surgery if she had been more informed.

Question
Does the medical standard of care require informed consent?

Holding
Yes

Reasoning
People have a constitutional right to privacy, which includes the right to determine what happens with their body. A doctor must disclose everything a “reasonable patient would want to know.” That’s why drug ads list so many side effects.

And the winner is...
Scott

More on doctors and informed consent
-Informed consent is implied if a patient is unconscious and the situation is an emergency.
-Doctors do not need informed consent if they can prove that it would be detrimental.
-No consent=battery, a criminal action.
-Incomplete consent=negligence, a tort.
-The patient can only sue for damages that arise out of uniformed risks. Even if the doctor doesn’t completely inform the patient, the doctor’s ass is still covered for all risks that were explained.
-Some states use an objective test: what would the reasonable person want to know?
-Some state use a subjective test: what would this person have wanted to know? It falls on the defense attorney to prove the plaintiff is lying.

summarized from Life of a Law Student

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