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Flashcards in Medical Law Deck (68)
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1

Doctor owes pt?

1. Standard of care
2. Non-abandonment
3. Informed consent
4. Confidentiality
*owed only if in a tx relationship (tx relationship is per episode of illness)

2

Cannot refuse a pt if:

1. For an illegal reason (race, disability, gender, etc.)
2. If already agreed (types of prior agreement: MCO contract or On-Call)

3

Detrimental reliance

On the part of the pt, if they rely on you as their physician to provide care then that is sufficient to est tx relationship

4

Informal consult

No tx relationship formed w/ pt
- no see pt, no see record, no write in record, no see labs, no bill

5

Independent Medical Exam (IME)

E.g - for social security, life insurance, etc.
*not in tx relationship w/ examinee

6

Ways to terminate tx relationship

1. Mutual consent
2. Pt dismisses physician
3. Medical services no longer needed
4. Physician unilateral withdrawal

7

Unilateral physician withdrawal

Permitted w/ sufficient notice (an amt of time appropriate for the pt to find another provider)

8

Abandonment

Failure to provide sufficient notice effort terminating tx relationship w/ a pt

9

Informed Consent

Exercise reasonable judgment/skill
(i.e. be non-negligent, avoid malpractice

10

Standard of Care

Judgment and skill of reasonably prudent physician under the circumstances
*usually est by expert witness

11

Battery

*no consent at all
1. No consent to any procedure
2. Consent to a diff procedure
3. Same procedure, diff body part
4. Same procedure, same part, diff doctor

12

Informed Consent

1. Duty - what to disclose
2. Breach - did not disclose
3. Injury - undisclosed risk happened
4. Causation - w/ disclosure, would have avoided injury

13

2 main tests/measures of Duty

- Risks
- Alternatives

14

Ways to measure Duty

1. Reasonable pt standard ("material risk" standard, measured by pt needs)
2. Reasonable physician standard ("professional/malpractice standard", measured by professional custom)

15

Exceptions to Duty

1. Information already known (by particular pt or commonly known)
2. Emergency
3. Therapeutic privilege
4. Waiver (pt doesn't want to know)
5. Public health (treat to protect the community)
6. CBO clause (conscious based objection)

16

Breach if:

1. Duty under applicable standard
2. No exception applies
*if physician fails to conform to applicable SOC

17

Injury

plaintiff must actually be injured from the undisclosed risk (no dignitary tort)
* no injury = no informed consent claim

18

Causation

Connects breach to injury
*w/o defendant breach (lack of disclosure), plaintiff prob wouldn't be injured
*injury direct result from breach

19

Sub-elements of causation

1. Plaintiff would have chosen differently had disclosure been made (i.e. wouldn't have consented)
2. Reasonable pt would have chosen differently
3. No procedure = no injury (risk must have been caused by the intervention) and

20

Reasonable Person/pt Standard

Duty to disclose new info IF reasonable pt would find it material in giving consent

21

Reasonable Physician Standard

Duty to disclose new info IF it is professional custom to disclose that

22

Punitive Damages

Awarded to the pt to punish the physician and set an example for the medical community
* rare and awarded only in cases of wanton carelessness or gross negligence

23

Capacity

Ability to understand the significant benefits, risks and alternatives to proposed health care AND ability to make and communicate a decision
- capacity is clinical decision w/ legal consequences

24

Decision-specific capacity

May have capacity to make some decisions about some things, but not others

25

Fluctuating capacity

May have more/less capacity @ diff times of day, etc.

26

Substitute Decision Maker (SDM)

1st - pt picks herself
2nd - if no agent, turn to default priority list (surrogate/proxy)
3rd - ask court to appoint SDM

27

Hierarchy of decision making by SDM

1. Subjective (what pt wanted based on instructions given)
2. Substituted judgment (what they would have wanted based on what you know about them)
3. Best interest

28

Minors (<18yo)

Presumed incompetent, so parent is SDM and acts in Best Interest of the pt (can't refuse life-saving tx unless harm outweighs benefits)

29

Exceptions to minor competence:

1. Emancipation
2. Un-emancipated can consent to some types of tx (STD, bc pill, etc)
3. "Mature" minors can consent in some states

30

Never-competent Adults

SDM must act in pt's Best Interest (like with minors)