Medical Malpractice

• Author: Kevin R. Culhane
• Pages: 486-519

11-486

Chapter 11

Medical Malpractice

§1100 Elements of Plaintiff’s Cause of Action

§1110 Definitions

§1120 Identification of Defendant

§1130 Education, Training, Certification and Licensure of Defendant

§1140 Defendant’s Relationship to Plaintiff

§1150 Alleged Errors and Omissions

§1160 Causation

§1170 Affirmative Defenses and Denials

§1180 Defendant’s Contentions

§1190 Miscellaneous

§1195 Deposition Checklists

§1100 Elements of Plaintiff’s Cause of Action

§1101 Duty

§1102 Breach of Duty

§1103 Cause in Fact

§1104 Proximate Cause

§1105 Damages

§1110 Definitions

§1120 Identification of Defendant

§1130 Education, Training, Certification and Licensure of Defendant

§1131 Education

§1132 Specialties, Continuing Education and Teaching

§1133 Certification and Licensure

§1140 Defendant’s Relationship to Plaintiff

§1141 Scope of Physician Undertaking

§1142 Documentation Regarding Physician/Patient Relationship

§1150 Alleged Errors and Omissions

§1151 Failure to Diagnose

§1151.1 Delayed Diagnosis

§1152 Administration of Medications

§1153 Consultation and Referral

§1154 Surgery

§1154.1 Identification of Operative Procedure

§1154.2 Sterile Operative Field

§1154.3 Administration and Monitoring of Anesthetic

§1154.4 Foreign Objects Left in Patient

11-487 MedICal MalPraCtICe

§1154.5 Postoperative Management and Complications

§1154.6 Postoperative and Discharge Procedures

§1154.7 Sexual Misconduct

§1155 Neurosurgery

§1156 Fetal Distress – Diagnosis and Response

§1157 Wrongful Birth and Wrongful Life

§1158 Informed Consent

§1159 Hospital Liability – Employment or Retention of Defendant Physician

§1160 Causation

§1161 Failure to Obtain Required Tests

§1162 Failure to Diagnose

§1163 Failure to Treat

§1164 Pre-existing Conditions

§1170 Affirmative Defenses and Denials

§1171 In General

§1172 Comparative Negligence

§1173 Assumption of Risk

§1174 Defendants Contentions re Failure to Disclose Symptoms

§1175 Defendants Contentions re Failure to Follow Directions or Warnings

§1176 Defendants Contentions re Failure to Report Complications

§1177 Defendants Contentions re Failure to Take Prescribed Medications

§1178 Defendants Contentions re Plaintiff’s Special Damages

§1179 Defendants Contentions re Plaintiff’s Failure to Mitigate

§1180 Defendant’s Contentions re Collateral Sources

§1190 Miscellaneous

§1191 Witnesses and Investigations

§1192 Nature and Extent of Insurance

§1193 Due Diligence in Preparation of Response

§1195 Deposition Checklists

§1196 Deposition of Defendant Physician

§1196.1 Personal Background

§1196.2 Educational Background

§1196.3 Business Background

§1196.4 Defendant’s Relationship to Plaintiff

§1196.5 Specific Errors and Omissions

§1196.6 Contentions Regarding Plaintiff’s Conduct

§1196.7 Statements by Parties, Witnesses

§1196.8 Investigation Conducted by Opposing Party

§1196.9 Insurance

§1197 Deposition of Plaintiff

§1197.1 Plaintiff – General Background

§1197.2 Plaintiff’s Relationship to Defendant

§1197.3 Specific Errors and Omissions

§1197.4 Injuries Resulting from Alleged Malpractice

§1197.5 Damages Resulting from Alleged Malpractice

§1197.6 Affirmative Defenses and Denials

§1197.7 Statements by Parties, Witnesses

§1100 Model InterrogatorIes 11-488

§1100 Elements of Plaintiff’s Cause of Action

The label “medical malpractice” is generally used to describe actions against a variety of health care professionals.

The liability that attaches is in essence negligence liability; in order for plaintiff to prevail, he must prove each of

the traditional elements of negligence. Accordingly, the plaintiff in a medical malpractice action must establish that

defendant’s conduct constituted a breach of a legal duty that was the cause in fact and the proximate cause of actual

damages to the plaintiff. Each of these elements is discussed in turn below.

§1101 Duty

As in traditional negligence analysis, the imposition of a legal duty in medical malpractice actions stems from the

formation of the physician/patient relationship. Under the substantive law, the formation of that relationship and the

affirmative undertakings that arise therefrom impose a duty upon the physician to meet the applicable standard of

care. Conversely, the absence of this relationship often means no duty of care is owed. Many of the initial interroga-

tories in this chapter seek to discover and establish the facts necessary to prove the formation of a physician/patient

relationship and the undertaking of affirmative duties by the physician.

§1102 Breach of Duty

A physician must exercise that degree of skill usual in the profession and exercised in the place in which the

physician practices. The general test is somewhat varied in the case of medical specialists, to take into account that

higher degree of learning and skill typically possessed by specialists. At the same time, it is clear that a bad result

alone only rarely results in liability, since poor results in medical science can and do result where there is no failure

to exercise due care.

Many of the interrogatories in this chapter deal with the nature of the physician’s undertaking at various stages in

the physician/patient relationship. The chapter contains interrogatories on diagnosis, treatment, and follow-up care,

most of which are designed to elicit facts relating to whether the physician acted with due care. In addition, the inter-

rogatories typically require identification of documents and witnesses relating to the fundamental issues of whether

the physician’s conduct comported with the applicable standard of care.

§1103 Cause in Fact

The defendant’s negligence must be a substantial factor and material element in bringing about the plaintiff’s

harm. This element is crucial in medical malpractice cases; the plaintiff cannot prevail if his or her medical condition

and symptoms would have occurred even without the defendant’s negligence. Accordingly, this chapter includes

numerous interrogatories relating to any person, event or condition that plaintiff alleges to have contributed to

plaintiff’s symptoms or medical condition. In addition, other interrogatories deal with the contention that plaintiff’s

medical situation was inevitable, the result of disease progression, or due to any other cause beyond the control of

the physician.

§1104 Proximate Cause

The defendant’s liability can be reduced or cut off entirely if additional forces combined with defendant’s neg-

ligence to cause plaintiff’s injury or medical condition. This frequently occurs in disease progression cases where

plaintiff’s preexisting condition can precipitate additional medical complications independent from or in concurrence

with defendant’s negligence. In addition, proximate cause issues can arise when defendant’s negligence results in

a harm that is unforeseeable in nature or scope. Use the questions in this chapter to elicit information pertaining to

these proximate cause issues.