Chapter Nine Flashcards
(36 cards)
Are professionals held to a local or national standard of care?
In the medical area many states have opted for a local standard, apparently with an implicit acknowledgment that expectations of reasonableness are dependent on locale. Some courts, however, influenced by the elevated expectations of professionals resulting from enhanced communications, have discarded the “locality rule” in favor of a national standard.
Is a professional negligent by definition if the client experiences a negative outcome?
No
Is a professional negligent if he or she chooses a course of action that is different from the one that many other professionals would have chosen?
Not necessarily.
List at least five ways that a professional can commit malpractice.
(1) Failure to have skills and learning commonly possessed by members in good standing within a profession;
(2) failure to use good judgment in choosing a course of action, to the extent that the action chosen constitutes a deviation from the standard of care reasonably expected of professionals in the field;
(3) failure to ask for essential information from a client;
(4) failure to make referrals when appropriate;
(5) failure to keep abreast of changes in the profession;
(6) failure to follow up on a client’s progress, condition, or status;
(7) failure to adhere to a specialist’s standard of care when appropriate;
(8) failure to provide informed consent.
To what standard of care is a specialist held?
A specialist must adhere to the standard of the “reasonably careful and prudent specialist” in that field.
What does the informed-consent doctrine require doctors to disclose?
A physician has a duty to warn patients of possible hazards, complications, and expected and unexpected results of treatment, as well as risks of any alternative treatments. Particularly if a therapy is new of experimental, the physician has a duty to warn the patient that all side effects of the treatment are not completely known. The duty to warn increases as the probability or severity of risk to the patient increases. Any patient who is unaware of the inherent risk of a proposed procedure cannot be said to have consented voluntarily to that procedure.
What is the difference between a negligence and a battery cause of action based on failure to inform?
Plaintiffs alleging lack of informed consent can sue on a theory of either battery or negligence. Of a patient is in total ignorance of what is to be done, or if the physician obtains consent for one procedure and then performs another, an action for battery will lie. In the more typical case, however, the patient is aware of the procedure and in fact signs a consent form but not clearly understand some of the risks inherent in the procedure. In this case a more appropriate cause of action is negligence.
What is a plaintiff alleging malpractice required to prove?
A plaintiff must prove both the standard of care expected within the profession and the defendant’s deviation from that standard, as well as causation and damages.
Must a plaintiff’s negligence add to or be concurrent with a defendant professional’s negligence for the defendant to be relieved of liability?
Concurrent.
What does a professional who decides to allege a defense of contributory negligence usually argue?
The defendant argues that the client refused to comply with her or her instructions or was otherwise uncooperative.
Under what conditions can a patient be said to have assumed the risk?
A patient who understands the risk involved in treatment and knowingly consents to that treatment can be said to have assumed the risk.
When is the defense of emergency a viable defense to a claim of negligence?
Treatment given during a life-and-death emergency is not required to be of the same level of care as that provided under less stressful circumstances. If death is imminent and treatment is absolutely necessary for the patient’s protection, the defense of emergency may be a viable defense to a claim of negligent treatment.
When is the defense of emergency NOT a viable defense to a claim of negligence?
If the emergency is caused by the physician’s negligence, her or she cannot use it as a defense.
Why is it important for professionals to maintain adequate records?
Maintenance of adequate records on a client’s case may be of critical importance in proving that no negligence occurred.
To whom do medical records belong?
The physical record itself is considered the property of the health care provider.
When do defendants have a right to these records?
The content of the record is usually considered to be the patient’s property, so if the patient will waive the physician-patient privilege, most state laws require that the record be released to the defendant.
Are professional negligence suits increasing or decreasing?
Increasing
What percentage of legal malpractice claims become insurance claims?
10%
On average, how many claims are filed against most attorney?
3
Do most of these claims result in recovery of damages?
No
What kind of attorney is most likely to be sued, and what type of error does this attorney typically commit?
Litigation attorneys who commit administrative errors.
What are the primary reasons for most legal malpractice claims?
A breakdown in communications.
What can attorneys do to prevent negligence suits?
The can maintain a good rapport with their clients by talking openly with clients about their problems, listening to their complaints, and behaving in a manner that indicates they respect their client; and by ensuring that their workload does not exceed their capacity to perform. They need to know how to manage their business and be willing to dedicate the amount of time necessary to handle a client’s problem competently.
What communications does the attorney-client privilege protect?
Any information exchanged between a client and the client’s attorney that is not disclosed to a third person is considered confidential.
