Liability And Quality Issues In Health Care

by Furrow, Barry R.; Greaney, Thomas L.; Johnson, Sandra H.; Jost, Timothy Stoltzfus; Schwartz, Robert L.

• ISBN13: 9780314154033
• ISBN10: 0314154035
• Edition: 5th
• Format: Paperback
• Copyright: 2004-08-26
• Publisher: West Group

Summary

Aimed at the specific content of an upper-level elective health law course, this law school casebook blends recent case law, statutory developments, and problems to maximize the flexibility of materials for teachers of health law. The notes are rich in detail and citations, allowing the teacher to spend more time on topics of particular interest. This law school casebook is a spin-off publication of Health Law: Cases, Materials & Problems, 5th Edition.

Table of Contents

Preface	v
Acknowledgments	ix
Table of Cases	xxi
Introduction to Health Law and Policy	1	(64)
Defining Sickness	1	(14)
Katskee v. Blue Cross/Blue Shield of Nebraska	3	(6)
Notes and Questions	9	(1)
Problem: The Couple's Illness	9	(1)
Alain Enthoven, PH.D., What Medical Care is and Isn't	10	(4)
Notes and Questions	14	(1)
Quality in Health Care	15	(11)
Defining the Nature of Quality in Health Care	15	(1)
Avedis Donabedian, The Definition of Quality and Approaches to its Assessment	15	(1)
Notes and Questions	16	(3)
Problem: Why Operate?	19	(1)
Assessing Quality	19	(1)
Avedis Donabedian, The Definition of Quality and Approaches to its Assessment	20	(1)
Notes and Questions	21	(3)
Improving Quality	24	(1)
Timothy S. Jost, Oversight of the Quality of Medical Care: Regulation, Management, or the Market?	25	(1)
Notes and Questions	26	(1)
The Problem of Medical Error	26	(39)
Medical Iatrogenesis: Definitions and Extent	27	(1)
The Extent of Medical Misadventures	28	(1)
Patients, Doctors, and Lawyers: Medical Injury, Malpractice Litigation, And Patient Compensation in New York	28	(2)
Notes and Questions	30	(2)
Remedying Quality Problems	32	(1)
Origins of Clinical Standards of Practice	32	(3)
Strategies for Reducing Medical Error	35	(1)
Lucian L. Leape, Error in Medicine	35	(9)
To Err is Human: Building a Safer Health System	44	(10)
Notes and Questions	54	(2)
Regulatory Approaches to Medical Errors	56	(2)
The Joint Commission on the Accreditation of Healthcare Organizations	58	(1)
Notes and Questions	58	(1)
The CMS Rules on Error	59	(2)
Notes and Questions	61	(1)
The Pennsylvania Patient Safety Authority	61	(2)
Notes and Questions	63	(1)
Problem: Disclosing Errors	63	(2)
Quality Control Regulation: Licensing of Health Care Professionals	65	(38)
Discipline	66	(12)
In re Williams	66	(2)
Hoover v. The Agency for Health Care Administration	68	(3)
Notes and Questions	71	(4)
Note: State Medical Boards and Online Prescribing	75	(2)
Problem: Virtual Advice	77	(1)
Alternative and Complementary Medicine	78	(8)
State Board of Registration for the Healing Arts v. McDonagh	78	(6)
Notes and Questions	84	(2)
Unlicensed Providers	86	(8)
State Board of Nursing and State Board of Healing Arts v. Ruebke	87	(5)
Notes and Questions	92	(2)
Scope of Practice Regulation	94	(9)
Sermchief v. Gonzales	95	(3)
Notes and Questions	98	(2)
Problem: Physicians, Physician Assistants, and Nurses	100	(3)
Quality Control Regulation of Health Care Institutions	103	(33)
Introduction	103	(2)
Mauceri v. Chassin	104	(1)
Notes and Questions	105	(1)
Regulatory Systems	105	(27)
Differences Among Health Care Institutions	105	(4)
Notes and Questions	109	(1)
Nursing Homes: Licensure and Medicare/Medicaid	110	(1)
The Regulatory Process	111	(1)
Standard Setting	111	(1)
In re the Estate of Michael Patrick Smith v. Heckler	111	(5)
Notes and Questions	116	(2)
Problem: Setting Standards for Staffing	118	(1)
Problem: Residents' Rights	119	(4)
Survey and Inspection	123	(1)
Sanctions	124	(1)
Fairfax Nursing Home, Inc. v. U.S. Dep't. of Health & Human Services	124	(3)
Notes and Questions	127	(2)
Problem: Restful Manor	129	(3)
Private Accreditation of Health Care Facilities	132	(4)
Liability of Health Care Professionals	136	(109)
The Standard of Care	136	(35)
Establishing the Standard of Care	136	(1)
Hall v. Hilbun	136	(9)
Notes and Questions	145	(2)
The Locality Rule	147	(1)
Telemedicine and Rural Practices	148	(1)
Expert Testimony	149	(4)
Problem: Stepping Outside Standard Practice	153	(1)
Note: Drug Side--Effects and Off--Label Uses	154	(1)
Practice Guidelines as Codified Standards of Care	155	(3)
Other Methods of Proving Negligence	158	(3)
Note: The Role of the Internet	161	(1)
Problem: Evidentiary Hurdles	162	(4)
Note: Discovery of Hospital Committee Proceedings and Incident Reports	166	(3)
Strict Liability	169	(2)
Judicial Risk---Benefit Balancing	171	(6)
Helling v. Carey	171	(2)
Notes and Questions	173	(1)
Note: The Effects of Tort Suits on Provider Behavior	174	(3)
Other Theories	177	(19)
Negligent Infliction of Mental Distress	177	(1)
Campbell v. Delbridge	177	(3)
Notes and Questions	180	(3)
Duties to Contest Reimbursement Limits	183	(1)
Wickline v. State	183	(5)
Notes and Questions	188	(4)
William M. Sage, Physicians as Advocates	192	(2)
Fraudulent Concealment and Spoliation of Evidence Actions	194	(1)
Problem: The Hospital Revolving Door	195	(1)
Defenses to a Malpractice Suit	196	(31)
Defenses to the Prima Facie Case: The Respectable Minority Rule, The Honest Error in Judgment Rule, and the Two Schools of Thought Rule	196	(1)
Chumbler v. McClure	196	(1)
Henderson v. Heyer--Schulte Corp.	196	(1)
Notes and Questions	197	(2)
Problem: To Monitor or Not?	199	(1)
Clinical Innovation	200	(1)
Brook v. St. John's Hickey Memorial Hospital	200	(2)
Notes and Questions	202	(2)
Good Samaritan Acts	204	(2)
Contributory Fault of the Patient	206	(1)
Ostrowski v. Azzara	207	(6)
Notes and Questions	213	(3)
Sharing Liability With Others: Direct--to--Consumer Drug Advertising	216	(1)
Perez v. Wyeth Laboratories Inc.	216	(9)
Notes and Questions	225	(2)
Causation Problems: Delayed, Uncertain, or Shared Responsibility	227	(6)
The Discovery Rule	227	(1)
Hardi v. Mezzanotte	227	(4)
Notes and Questions	231	(1)
Multiple Defendants	231	(1)
Joint Tortfeasor Doctrine	231	(2)
Multiple Defendants and Burden Shifting	233	(1)
Damage Innovations	233	(12)
The ``Loss of a Chance'' Doctrine	233	(1)
Herskovits v. Group Health Cooperative of Puget Sound	233	(7)
Notes and Questions	240	(3)
Problem: The Patient's Choice?	243	(1)
Punitive Damages	243	(2)
The Professional--Patient Relationship	245	(119)
Introduction	245	(1)
The Contract Between Patient and Physician	246	(22)
Express and Implied Contract	246	(1)
Dingle v. Belin	246	(5)
Notes and Questions	251	(3)
Physicians in Institutions	254	(1)
Hand v. Tavera	254	(2)
Notes and Questions	256	(1)
Specific Promises and Warranties of Cure	256	(3)
Exculpatory Clauses	259	(1)
Tunkl v. Regents of Univ. of California	259	(2)
Notes and Questions	261	(1)
Partial Limitations on the Right to Sue	262	(1)
Shorter v. Drury	262	(4)
Notes and Questions	266	(1)
Problem: Arbitrating Disaster	267	(1)
Problem: Mediating Disaster	268	(1)
Confidentiality and Disclosure in the Physician--Patient Relationship	268	(39)
Breaches of Confidence	268	(1)
Humphers v. First Interstate Bank of Oregon	269	(4)
Notes and Questions	273	(3)
Problem: The Hunt for Patient Records	276	(1)
Doe v. Medlantic Health Care Group, Inc.	276	(4)
Notes and Questions	280	(2)
Problem: The HIV--Positive Physician	282	(1)
Federal Medical Privacy Standards	283	(1)
Standards for Privacy of Individually Identifiable Health Information	283	(15)
Notes and Questions	298	(4)
Problem: Leaking Patient Information	302	(1)
Duties to Protect Third Parties	302	(4)
Problem: The Stubborn Patient	306	(1)
Problem: The Tour Bus	307	(1)
Problem: Genetic Risks	307	(1)
Informed Consent: The Physician's Obligation	307	(54)
Origins of the Informed Consent Doctrine	307	(2)
The Legal Framework of Informed Consent	309	(1)
Negligence as a Basis for Recovery	309	(1)
Canterbury v. Spence	309	(7)
Notes and Questions	316	(4)
Disclosure of Physician--Specific Risk Information	320	(1)
Johnson v. Kokemoor	320	(8)
Notes and Questions	328	(1)
Problem: Disclosing Physician Risks	329	(1)
Disclosure of Statistical Mortality Information	330	(1)
Arato v. Avedon	330	(7)
Notes and Questions	337	(1)
Disclosure of Risks of Non--Treatment	338	(1)
Truman v. Thomas	338	(3)
Notes and Questions	341	(2)
Problem: Information Overload	343	(1)
Disclosure of Physician Conflicts of Interest	343	(1)
Moore v. Regents of the University of California	343	(6)
Notes and Questions	349	(3)
Causation Complexities	352	(1)
Canterbury v. Spence	352	(1)
Notes and Questions	353	(1)
Damage Issues	354	(1)
The ``Benefits'' Doctrine	354	(1)
Punitive Damages	355	(1)
Tisdale v. Pruitt, Jr., M.D.	355	(3)
Notes and Questions	358	(1)
Exceptions to the Duty to Disclose	359	(1)
Canterbury v. Spence	359	(1)
Notes and Questions	360	(1)
Problem: Whose Benefit Is It Anyway?	361	(1)
Informed Consent: The Institution's Obligation	361	(3)
Liability of Health Care Institutions	364	(80)
Introduction	364	(1)
From Immunity to Vicarious Liability	365	(22)
Charitable and Other Immunities	365	(1)
Bing v. Thunig	365	(1)
Note: Elimination of Immunity	366	(1)
Vicarious Liability Doctrine	367	(1)
The Captain of the Ship Doctrine	367	(1)
Stretching Vicarious Liability Doctrine	368	(1)
The General Rule	368	(1)
Schlotfeldt v. Charter Hospital of Las Vegas	368	(2)
Notes and Questions	370	(1)
The Control Test	371	(1)
Berel v. HCA Health Services of Texas, Inc.	371	(1)
Notes and Questions	372	(1)
The ``Ostensible Agency'' Test	372	(1)
Sword v. NKC Hospitals, Inc.	373	(5)
Notes and Questions	378	(2)
The Non--Delegable Duty Doctrine	380	(1)
Simmons v. Tuomey Regional Medical Center	380	(5)
Notes and Questions	385	(1)
Problem: Creating a Shield	386	(1)
Hospital Direct Liability	387	(37)
Negligence	387	(1)
Washington v. Washington Hospital Center	387	(4)
Notes and Questions	391	(2)
Negligence Per Se	393	(1)
Johnson v. Hillcrest Health Center, Inc.	393	(5)
Notes and Questions	398	(1)
Duties to Treat Patients	399	(1)
Muse v. Charter Hospital of Winston--Salem, Inc.	399	(2)
Notes and Questions	401	(1)
Strict Liability	402	(1)
Problem: The Monitor Failed	403	(1)
The Emergence of Corporate Negligence	403	(1)
The Duty to Protect Patients From Medical Staff Negligence	404	(1)
Darling v. Charleston Community Memorial Hospital	404	(2)
Notes and Questions	406	(2)
Thompson v. Nason Hosp.	408	(3)
Notes and Questions	411	(2)
Problem: Proctoring Peers	413	(1)
Problem: The ``Love'' Surgeon	414	(1)
Problem: Cascading Errors	415	(1)
The Duty to Protect Third Parties	416	(1)
Douglass v. Salem Community Hospital	416	(4)
Notes and Questions	420	(2)
Problem: Referrals	422	(1)
Problem: The Birthing Center	422	(2)
Reforming the Tort System for Medical Injuries	424	(20)
Medical Progress and Other Changes in The Health Care Environment	424	(2)
The Nature of the Insurance Industry	426	(1)
Notes and Questions	427	(3)
Improving Insurance Availability	430	(3)
Altering the Litigation Process	433	(1)
Common Tort Reforms	433	(2)
Changing the Judicial Role	435	(1)
Alternative Approaches to Compensation of Patient Injury	436	(2)
No--Fault Reforms	438
Second--Generation Reforms	437	(1)
Medical Practice Guidelines as the Standard of Care	437	(1)
Alternative Dispute Resolution (ADR)	437	(1)
No--Fault Systems	438	(1)
Provider--Based Early Payment	438	(1)
Notes and Questions	438	(1)
Administrative Systems	439	(1)
Notes and Questions	440	(1)
Enterprise Liability	441	(2)
Conclusion	443	(1)
Access to Health Care: The Obligation to Provide Care	444	(38)
Common Law Approaches	445	(9)
Ricks v. Budge	445	(3)
Childs v. Weis	448	(2)
Williams v. U.S.	450	(1)
Notes and Questions	451	(2)
Problem: Cheryl Hanachek	453	(1)
Problem: Ethics and Law: Never the Twain Shall Meet?	453	(1)
Statutory Exceptions to the Common Law	454	(28)
EMTALA	454	(1)
Emergency Medical Treatment and Labor Act	455	(2)
Baber v. Hospital Corporation of America	457	(6)
Notes and Questions	463	(3)
Problem: Mrs. Miller	466	(1)
The Americans With Disabilities Act and Section 504 of the Rehabilitation Act	467	(1)
Howe v. Hull	468	(3)
Bragdon v. Abbott	471	(4)
Notes and Questions	475	(2)
Title VI	477	(3)
Problem: Emmaus House I	480	(1)
Problem: Emmaus House II	480	(2)
Private Health Insurance and Managed Care: State Regulation and Liability	482	(78)
Insurance and Managed Care: Some Basic Concepts	482	(10)
The Concept of Managed Care	482	(2)
Jacob S. Hacker and Theodore R. Marmor, How Not to Think About ``Managed Care''	484	(3)
Note	487	(1)
The Concept of Insurance	487	(1)
Congressional Research Service, Insuring the Uninsured: Options and Analysis	488	(3)
Notes and Questions	491	(1)
Deborah Stone, The Struggle for the Soul of Health Insurance	491	(1)
Contract Liability of Private Insurers and Managed Care Organizations	492	(4)
Lubeznik v. HealthChicago, Inc.	492	(3)
Notes and Questions	495	(1)
Tort Liability of Managed Care	496	(28)
Vicarious Liability	497	(1)
Petrovich v. Share Health Plan of Illinois, Inc.	497	(11)
Notes and Questions	508	(3)
Direct Institutional Liability: Corporate Negligence	511	(1)
Shannon v. McNulty	511	(4)
Notes and Questions	515	(1)
Problem: The Overworked HMO Physician	516	(2)
Physician Incentive Systems	518	(1)
Bush v. Dake	518	(2)
Notes and Questions	520	(2)
Problem: Wanting the ``Best''	522	(2)
Regulation of Private Health Insurance Under State Law	524	(6)
Traditional Insurance Regulation	524	(1)
Attempts to Increase Access to Insurance Through Regulation	525	(1)
Colonial Life Insurance Company of America v. Curiale	526	(2)
Notes and Questions	528	(2)
Problem: Expanding Insurance Coverage	530	(1)
State Regulation of Managed Care	530	(19)
Introduction	530	(1)
Massachusetts General Laws Annotated: An Act Relative to Managed Care Practices in the Insurance Industry	531	(8)
Notes and Questions	539	(1)
Problem: Advising Under State Managed Care Law	540	(1)
State Law Regulating MCO Networks	541	(2)
Utilization Controls	543	(4)
Provider Incentives	547	(2)
Quality Regulation	549	(1)
Problem: Regulating Managed Care	549	(1)
Perspectives on Managed Care Regulation	549	(4)
David Hyman, Regulating Managed Care: What's Wrong with a Patient Bill of Rights	550	(3)
What Follows Managed Care? Consumer--Directed Health Care and Defined--Contribution Health Plans	553	(7)
John Jacobi, After Managed Care: Gray Boxes, Tiers and Consumerism	553	(4)
Notes and Questions	557	(3)
Regulation of Insurance and Managed Care: The Federal Role	560	(71)
Introduction	560	(1)
The Employee Retirement Income Security Act of 1974 (ERISA)	560	(71)
ERISA Preemption of State Health Insurance Regulation	560	(2)
Rush Prudential HMO, Inc., v. Debra C. Moran, et al	562	(8)
Notes and Questions	570	(5)
Problem: ERISA Preemption of State Managed Care Regulation	575	(1)
The Relationship Between Federal ERISA Fiduciary and State Tort Claims Against Managed Care Plans: Pegram v. Herdrich	576	(1)
Pegram v. Herdrich	576	(9)
Notes and Questions	585	(1)
ERISA Preemption of State Tort Litigation	586	(7)
DiFelice v. Aetna U.S. Healthcare	593	(15)
Notes and Questions	608	(1)
Beneficiary Remedies Provided By Erisa	609	(1)
Doe v. Group Hospitalization & Medical Services	610	(5)
Notes and Questions	615	(5)
Problem: ERISA Litigation	620	(1)
Administrative Claims And Appeals Procedures Under Erisa	620	(2)
Notes and Questions	622	(1)
Provider Disclosure Of Financial Incentives	622	(1)
Horvath v. Keystone Health Plan East	622	(5)
Notes and Questions	627	(4)
Index	631