HealthCareTortsSpring2004

1、整理課件1 Health Care TortsSpring 2004Edward P. RichardsHarvey A. Peltier Professor of LawPaul M. Hebert Law CenterLouisiana State UniversityBaton Rouge, LA 70803-1000整理課件2Course OrganizationnMost of the classes will involve discussion of cases and other materials

2、nNo book - everything will be on the WWW or handed outnLimited PowerPoint整理課件3Discussion GroupsnYou will be assigned to one of four groupsnYour group will be responsible for the materials assigned for a given daynIf we do not finish, you carry over until we finish the materialnIf you are not in clas

3、s when I call on you, you are responsible for group assignment due the next day you are in class, whether it is your group or the nextnIf you do not prepare, I reserve the right to reduce your final grade by up to a letter整理課件4Purpose of the CoursenLawnLearn basics of health care tort law in the USn

4、Learn the special issues of LA health care tort lawnRisk ManagementnDiscuss how to counsel clients to reduce liabilitynPublic Policy整理課件5Why Study Health Care Torts?nMedicine is in fluxnThere is no societal consensus on acute medical care or on preventionnHealth care finance is a messnHealth care is

5、 seen as too expensivenRipe ground for tort lawnDifficult policy problems整理課件6Legal Role of Tort LawnInterstitial CompensationnProvides a compensation system for rare or unanticipated injuriesnProvides a background deterrence system for evolving societal problemsnActs as a general claims resolution

6、system for routine claims整理課件7Political Role of Tort LawnBread and CircusesnLottery JusticenCreates the illusion of justice through anecdotal compensation and deterrencenDefuses political action that would increase individual justicenGenerates high transaction costs that support the bar and politici

7、ans and entrench the system整理課件8Is Tort Law a Good Thing in Health Care?nProsnInformed consentnHelped highlight problems of managed carenCan target unethical or incompetent behaviornConsnVaccine lawnContraceptive liabilitynMedical malpractice insurance issuesnInterferes with quality assurance整理課件9Hi

8、story of MedicineWhy bother?整理課件10Cavemen to the Civil WarnRich literaturenLots of theories of medicinenLots of treatmentsnOnly a few things worked at allnSome cutting and sewing of woundsnSome drugs - opium, digitalisnOn balance, you were better off without medical care整理課件11Pre-Modern Era Science

9、Leads PracticenEarly 16th Century - Paracelsus -Transition From AlchemynMid 16th Century - Andreas Vesalius - Accurate AnatomynEarly 17th Century - William Harvey - Blood Circulationn1800 - Edward Jenner - Smallpoxn1846 - William Morton - Ether Anesthesian1849 - Semmelweis - Childbed Fever - Control

10、led Studiesn1854 - John Snow - Proved Cholera Is Waterborne整理課件12The Profession - Through the 1870snMost Medical Schools are Diploma MillsnNo Bar to Entry to ProfessionnSmall Number of Urban Physicians are RichnMost Physicians are PoornCannot Make Capital InvestmentsnTrainingnMedical Equipment and S

11、taffnPhysicians Push for State Regulation整理課件13Schools of PracticenAllopathynOpposite ActionsnToxic and NastynHomeopathynSame Action as the Disease SymptomsnTiny DosesnLess DangerousnNaturopaths, Chiropractors, Osteopaths, and Several Other Schools整理課件14Legal ConsequencesnNo Testimony Across Schools

12、 of PracticenDifferent from Medical SpecialtiesnSurgery, Internal Medicine, PediatricsnAll Same School of Practice - AllopathynAll Same LicensenCross-Specialty Testimony AllowednStill important with the rise of alternative/quack medicinenLocality rule - no national standards整理課件15Pre-Modern Hospital

13、snLHotel-Dieu - ParisnMyth dates it from medieval timesnNursing, no medical carenThe Church did not believe in medicinenUS HospitalsnRun by NunsnJust lodging and nursing整理課件16Legal ConsequencesnCharitable ImmunitynReally want to sue a nun?nBorrowed Servant DoctrinenSeen as protective, but really all

14、owed suit against the only solvent, reachable partynCapitan of the Ship variantnNo legal relationship with the physicians整理課件17Beginnings of the Modern Eran1850 - Report of the Sanitary Commission Of Massachusettsn1860-1880s - Louis Pasteur - Scientific Method, Simple Germ Theory, Vaccination For Ra

15、bies, Pasteurizationn1867-1880 - Joseph Lister - Antisepsis (Listerine)n1880s - Koch - Modern Germ TheorynOrganic Chemistry 1880s - drugsn1860s - 1900s - Sanitation Movement - Modern Public Health整理課件18Modern Medicine and SurgerynSurgery Starts to Work in the 1880snSurgery Can Be Precise - Anesthesi

16、anPatients Do Not Get Infected - AntisepsisnProfessionalism Starts to MatternWhat is a Quack if Nothing Works?nWhy Train if Training Does Not Matter?整理課件19Licensing and EducationnEffective Medicine Drives LicensingnLicensing Limits CompetitionnPhysicians Start to Make MoneynMoney allows investment i

17、n capital stocknTrainingnEquipmentnStaff整理課件20Hospital-Based MedicinenStarted With SurgerynMedical LaboratoriesnBacteriologynMicroanatomynRadiologynServices and Sanitation Attract PatientsnInternal MedicinenObstetrics Patients整理課件21Reformation of HospitalsnParalleled Changes in the Medical Professio

18、nnBegan in the 1880snShift From Religious to SecularnBegan in the Midwest and WestnNot As Many Established Religious HospitalsnToday, Religious Orders Still Control A Majority of Hospitals整理課件22Post WW II TechnologynVentilators (Polio)nElectronic MonitorsnIntensive CarenHospitals Shift From Hotel Se

19、rvices to Technology Oriented Nursing整理課件23Post World War II MedicinenConquering Microbial DiseasesnVaccinesnAntibioticsnShift to Chronic DiseasesnBetter DrugsnBetter StudiesnChildhood LeukemianShift to Specialty Training整理課件24Health Care Finance Post WW IInKaiser started during the 1930s to care fo

20、r workers on the Grande Coulee DamnBlue Cross/Blue Shield was started by docs and hospitals to assure their paymentnHealth insurance became a common employment benefit during WW II to escape from wage controlsnIndigents were only covered by charitable institutions整理課件25Corporate Practice of Medicine

21、nPhysicians Working for Non-physiciansnConcerns About Professional JudgmentnCases From 1920 Read Like the HeadlinesnBanned In Most StatesnLA does not ban, but says there cannot be any control of medical decisionmakingn/cases/la/adlaw/bome/EmploymentofPhysician.pdf整理課件26Physi

22、cian Practice OrganizationnMostly SmallnSole ProprietorshipsnPartnershipsnThen Professional CorporationsnLimited bargaining powernCannot join with other doc groups for bargaining because of antitrust lawsnPressure to form larger corporate units整理課件27Impact of Corporate Practice BansnPhysicians Do No

23、t Work for Non-Governmental HospitalsnContracts Governed by Medical Staff BylawsnSham of “Buying” PracticesnPhysicians Contract With Most InstitutionsnCharade of Captive Physician GroupsnManaged Care Companies Contact With GroupnGroup Enforces Managed Care Companys RulesnVery important to sort out w

24、hen you are filing a lawsuit整理課件28Legal Consequences when Suing HospitalsnPhysicians are Independent ContractorsnHospitals Are Not Vicariously Liable for Independent Contractor PhysiciansnHospitals Are Liable for Negligent Credentialing and Negligent RetentionnHospitals Can Be Liable if the Physicia

25、n is an Ostensible Agent整理課件29Joint Commission on Accreditation of Hospitalsn1950snNow Joint Commission on Accreditation of Health Care OrganizationsnAmerican College of Surgeons and American Hospital AssociationnSplit The Power In HospitalsnMedical Staff Controls Medical StaffnAdministrators Contro

26、l Everything ElsenEnforced By Accreditation整理課件30Contemporary Hospital OrganizationnClassic Corporate OrganizationsnCEOnBoard of Trustees Has Final AuthoritynOften Part of A ConglomeratenMedical Staff CommitteesnTied To Corporation by BylawsnHeaded by Medical DirectornConstant Conflict of Interest/A

27、ntitrust Issues整理課件31Medical Staff BylawsnContract Between Physicians and HospitalnNot Like the Bylaws of a BusinessnSelection CriterianContractual Due Process For TerminationnNegotiated Between Medical Staff and Hospital BoardnIf the met federal standards, peer review decisions are exempt from antitrust law at