Liability And Quality Issues In Health Care

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

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ISBN: 9780314154033 | 0314154035
Cover: Paperback
Copyright: 8/26/2004

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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.

Preface

Acknowledgments

Table of Cases

xxi

Introduction to Health Law and Policy

(64)

Defining Sickness

(14)

Katskee v. Blue Cross/Blue Shield of Nebraska

(6)

Notes and Questions

(1)

Problem: The Couple's Illness

(1)

Alain Enthoven, PH.D., What Medical Care is and Isn't

(4)

Notes and Questions

(1)

Quality in Health Care

(11)

Defining the Nature of Quality in Health Care

(1)

Avedis Donabedian, The Definition of Quality and Approaches to its Assessment

(1)

Notes and Questions

(3)

Problem: Why Operate?

(1)

Assessing Quality

(1)

Avedis Donabedian, The Definition of Quality and Approaches to its Assessment

(1)

Notes and Questions

(3)

Improving Quality

(1)

Timothy S. Jost, Oversight of the Quality of Medical Care: Regulation, Management, or the Market?

(1)

Notes and Questions

(1)

The Problem of Medical Error

(39)

Medical Iatrogenesis: Definitions and Extent

(1)

The Extent of Medical Misadventures

(1)

Patients, Doctors, and Lawyers: Medical Injury, Malpractice Litigation, And Patient Compensation in New York

(2)

Notes and Questions

(2)

Remedying Quality Problems

(1)

Origins of Clinical Standards of Practice

(3)

Strategies for Reducing Medical Error

(1)

Lucian L. Leape, Error in Medicine

(9)

To Err is Human: Building a Safer Health System

(10)

Notes and Questions

(2)

Regulatory Approaches to Medical Errors

(2)

The Joint Commission on the Accreditation of Healthcare Organizations

(1)

Notes and Questions

(1)

The CMS Rules on Error

(2)

Notes and Questions

(1)

The Pennsylvania Patient Safety Authority

(2)

Notes and Questions

(1)

Problem: Disclosing Errors

(2)

Quality Control Regulation: Licensing of Health Care Professionals

(38)

Discipline

(12)

In re Williams

(2)

Hoover v. The Agency for Health Care Administration

(3)

Notes and Questions

(4)

Note: State Medical Boards and Online Prescribing

(2)

Problem: Virtual Advice

(1)

Alternative and Complementary Medicine

(8)

State Board of Registration for the Healing Arts v. McDonagh

(6)

Notes and Questions

(2)

Unlicensed Providers

(8)

State Board of Nursing and State Board of Healing Arts v. Ruebke

(5)

Notes and Questions

(2)

Scope of Practice Regulation

(9)

Sermchief v. Gonzales

(3)

Notes and Questions

(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

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Liability And Quality Issues In Health Care

Summary

Table of Contents

Supplemental Materials