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Health Essay

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Class notes
Thursday, January 13, 2011
4:01 PM

1. Dunbrook #: 860-874-6858
2. Final
a. 3 sections
i. 1 worth 50 pts : fact pattern-spot issues and apply laws
i i. 2 worth 25 pts: opinion letter to client - issue given to us i ii. 3 worth 25 pts: hypothetical future occurrence and a statute and if statute will stand 1) Case to look at given to us
b. Do not need to no ERISA or anti trust- look at highlighted areas c. No page limit
3. Introduction
i. The Deadly Choices at Memorial by Sheri Fink
1) Principal of double effect: give morphine ( to alleviate pain) to the point where it i nduces death
a. Defining Sickness: Defining Health
i . Important to define health, because quality of care relates to healthiness. Go to get care for preventive reasons and also to get healthy
ii. Definition of health
1) Class discussion
a) Physically fit
b) Disease free
c) The norm in regards to blood pressure, cholesterol, weight, etc. i) Who defines normal
i i) Does the norm change?
d) Organs are healthy
2) World Health Org: defines health as "a state of complete physical, mental and social well -being and not merely the absence of disease or infirmity" a) High threshold
b) What about the government providing public health care with this definition? Is i t possible?
i) Social indicia have as much as an impact on health as medical services One. This becomes complex
3) Limited definition: the performance by each part of the body of its "natural" function a) What is the range of normal function?
i) Is it statistically?
ii) What about fertility? Is infertility a disease? At some point men and women all become infertile so at what age is it considered a disease? iii) Can also be temporally defined: depends on timing if it, example -PMS iii. Katskee v. Blue Cross/Blue Shield of Nebraska (1994)

1) Facts: P's Dr diagnosed P as suffering from a genetic condition called breast -ovarian carcinoma syndrome and recommended that she undergo an operation to remove her uterus, ovaries, and fallopian tubes. Even though Katskee was diagnosed with a genetic condition with a high risk for developing cancer, Katskee did not have cancer. Her insurance provider, D, would not pay for the surgery bc they did not think it was necessary. The K that D and P had said that D would decide if the treatment for i llness (bodily disorder or disease) was medically necessary. P had the surgery and brought claim against D her insurance provider for breach of K. a) Class notes: before 1994 there was no test for the disorder, it was based on family history. In 1994 tests were developed

2) Procedural history: D filed a motion for summary judgment saying that P did not have a disease, she had a genetic disorder. And under the K they could decide what was medically necessary. DC approved motion. P filed appeal.

Notes Page 1

medically necessary. DC approved motion. P filed appeal.
3) Issue 1: Will an ambiguous term contained in an insurance policy be construed in favor of the insured?
4) Holding/Rule : Yes, An ambiguous term contained in an insurance policy will be construed
in favor of the insured.
5) Reasoning: If the contract is ambiguous, the court will look beyond the terms and l anguage of the contract to ascertain the intention of the parties. An ambiguous policy will be construed in favor of the insured. The plain meaning of “bodily disorder” and “disease” in Katskee’s insurance policy is unambiguous and encompasses any abnormal condition of the body that would problematic if untreated or a deviation from the healthy state of the individual.

6) Issue 2: whether Katskee had an “illness” that would be covered by her insurance policy.
7) D argument: P had a predisposition to cancer, not the disease itself. 8) Holding: Yes, the illness would be covered
9) Reasoning: Katskee’s genetic condition increased her risk of developing breast and/or ovarian cancer. Katskee’s condition is a deviation from what is considered a normal, healthy physical state and arises, in part, from the genetic makeup of the woman. The medically accepted definitions of disorder and disease as well as the serious nature of Katskee’s medical condition are sufficient evidence to conclude that Katskee suffered from a medically necessary bodily illness or disease. The physicians involved in Katskee’s care agreed that the standard of care for those suffering from the syndrome i s radical “prophylactic” surgery such as was performed on Katskee. 10) Note:

a) In modern times, this would be an easier case because there is a test for the i llness.
b) This case is impt because insurance companies now have to cover prophylactic care for genetic disorders.
iv. What about syndromes that are under someone's control like alcoholism, should they be covered?
1) Should we even call it an illness?
2) Should insurance have to cover it?
3) What abt illness as a result of something someone did, like emphysema bc someone smoked?
v. What about when a syndrome and disease is new, at what point should we start covering it? 1) Ex: fibromyalgia- very sore and very tired usually as a result of an accident or trauma. It is covered by insurance, but at what point should we cover it. How many people should show symptoms before it is covered?

a) Enough people have it, and they aren't covered and they go to court or a law is e nacted
b. Public Health
i. Barry Levy1) public health is:
a) Clean water
b) Car safety
c) Workplace safety
d) Access to healthcare
2) It is a social responsibility not just health care professionals a) Ex: when someone with AIDS has intercourse with many people unprotected and doesn’t warn the partner
3) 8 areas of public health:
a) Environmental health laws
b) Laws and regulations on reporting disease and injury
i) Ex: AIDS, so can tell partner so they can be checked out
c) Laws pertaining to vital statistics
Notes Page 2

c) Laws pertaining to vital statistics
d) Disease and injury control
i) That will effect large numbers of people
e) Involuntary testing
i ) Ex: AIDS in a given community and to id those who need treatment f) Contact tracing
g) Immunization and mandatory treatment
i) quarantine
h) Personal restrictions
i) Restrict person with salmonella bacteria from working as a food handler. quarantine
ii. When does something become a public health issue?
1) Many people affected or could be affected
iii. The constitutional foundation of public health lawcompelling behavior for good of public welfare 1) Jacobson v. Massachusetts
a) Facts: P sued Mass (D) alleging that a state law authorizing cities to require citizens to be vaccinated against smallpox exceeded thestate’s power. The city of Cambridge adopted such a regulation requiring a resident to undergo vaccination or be fined $5. P was unsuccessful in state court in his claim that the statute requiring mandatory vaccination was unconstitutional and violated his l iberty. He appealed to the Supreme Court.

b) Issue: Does a state have the authority under its police power to enact reasonable laws to protect the public health and safety of its citizens? c) Rule: A state has the authority to enact reasonable laws under its police power to protect the public health and safety of its citizens. These health laws can include quarantine laws and vaccination laws, however, they must be reasonable with respect to its ends. The state can give local bodies the power to administer the action.

d) D arg: the mandatory vaccination law is unreasonable, arbitrary, and oppressive.
e) Ct holding/reasoning: a state may enact reasonable regulations to protect the good of all of its citizens, not just an individual. The liberty provided to each individual as secured by the U.S. Constitution does not instill an absolute right in each person to be completely free from all restraint. There are some restraints designed to protect citizens as a group, at the expense of i ndividual freedom. Here, the incidence and prevalence of smallpox is increasing i n the city of Cambridge. Cambridge has a right to protect itself against such an epidemic of disease that threatens the safety of all of its residents. Law is constitutional

2) HPV vaccine and Public Health Law
a) Uproar over Middle Schools requiring girls to get vaccinationi) bc new and risks weren't known One. Counter- other vaccines are used right away like polio. ii) Moral objection: it would remove one of the consequences of early sexual i ntercourse and thus young girls would be more likely to engage in sexual conduct

b) Mandates were withdrawn. But physicians now recommend
iv. Forced treatment, isolation and quarantine
1) Threat of pandemics: public health officials have a tremendous amt of power when it comes to making decisions in these kinds of cases, such as NY state draft: who will be able to get a respirator if there is a pandemic like Katrina and not enough respirators for everyone.

a) Are guidelines good?
i) Can be so doctors don’t have to waste time during the pandemic to decide such issues
Notes Page 3

decide such issues
i i) But then doctor's discretion is decreased
i ii) The expectation is that at some point there will be an epidemic and things like this need to be decided.

Medical Care
i. Misconceptions:
1) Dr should be able to know what condition the person has, be able to anser patient's questions precisely, and prescribe the right treatment, if he doesn’t it is incompetence or malpractice
a) Sometimes Dr wont know diagnosis because it is hard to determine what the proper diagnosis is
b) Often no clear link between treatment and outcome
2) For each medical condition, there is a best treatment. It is up to the dr to know about that treatment and to use it.
a) There are sometimes several possible treatments that are legitimate. Whether one is better than another depends in part on the interpretation of the diagnostic tests but also in part on the patients values

3) Medicine is an exact science. Firm scientific base for what the dr does. a) It is actually more of a matter of judgment
4) Medical care consists of standard products that can be described precisely and measured meaningfully in standard units
a) Anything but standard, it is a uniquely personal interaction between two people.
5) Much of medical care is a matter of life or death or serious disability and pain a) Most medical care is a matter of quality of life- relief of pain or dysfunction 6) More medical care is better than less care

a) More may actually be harmful

4. Health Care Relationships: Doctor and Patient
a. What is Medical Care? What are the duties of hospitals/ doctors i . Assessing Quality
ii. First question to ask: IS THERE A DUTY?
iii. Esquivel v. Watters
1) Facts: After receiving obstetric counseling at Ark City Clinic (D), a pregnant Michelle Esquivel (P) went to the South Central Kansas Regional Medical Center (SCKRMC) (D) for a free sonogram to determine the sex of the baby. Prior to the procedure, P signed a consent and waiver of liability form stating that there was no guarantee that a gender could conclusively be determined and that the sole purpose of the test was to determine the baby’s gender —not to determine any fetal abnormalities or other complications. A technician at the SCKRMC performed the sonogram and, while taking pictures, noticed that the baby’s bowel was outside of his body, a condition known as gastroschisis. The technician was unable to determine the gender due to the presence of this condition. The technician did not inform Michelle of the condition because he was not qualified to make a medical diagnosis. He sent the sonogram pictures to a radiologist at Ark City Clinic who refused to view them because the procedure was solely to determine the sex of the baby. The technician also orally informed P's obstetrician, Dr. Aaron Watters, (D) of the condition. No written report was made by e ither the technician or Watters regarding the conversation. Shortly thereafter, Watters asked a nurse to follow up with P. She was unsuccessful. During subsequent prenatal visits, Watters forgot to inform P of the baby’s medical condition. Michelle gave birth to Jadon about one month later when she, her husband Jesse, and the medical staff became aware of his condition. Jadon was transferred to another hospital the same day and a physician performed surgery on Jadon, but informed the Esquivels that there was no hope for his survival. Jadon died approximately one month later. P brought suit against the Ds for the wrongful death of Jadon. The DC granted summary judgment to all of the defendants. P appealed the summary Notes Page 4

granted summary judgment to all of the defendants. P appealed the summary judgments.
2) Issue: Does a hospital owe a duty of care to an individual when no hospital -patient relationship exists beyond a specific purpose?
3) Rule: In the absence of a hospital -patient relationship, a hospital owes no duty to an individual to provide treatment for a disease, illness, or medical condition . 4) Holding/Reasoning: No. No hospital -patient relationship existed between the SCKRMC and D triggering a duty of the facility to provide medical treatment or diagnosis beyond its limited duty of performing a sonogram to determine the gender of her baby, which it performed in a non -negligent manner. The facility did not offer to advise or treat P for any medical condition.

5) Judgment: summary judgment in favor of D affirmed
b. The Hippocratic Oathi. Classical Version
1) Keep from harm and injustice
a) Principle of benefices- do no harm
2) Will not give anyone a deadly drug
3) Will not do abortions
4) Will benefit the sick, remain free of all intentional injustice 5) Will keep info confidential
ii. Modern
1) Duties from Oath
a) Will benefit the sick and take all measures required
b) Not over treat or under treat because you don’t care
c) Approach medicine as an art not just science
d) Be willing to admit limitations of knowledge and skill
e) Respect privacy of patients
f) Be careful with anything where life and death is involved, particularly if you have a power to take a life
g) Responsibility goes beyond a symptom, treating a human being and their related problems such as person's family and economic stability h) Prevent disease, preferable to cure
i ) As a member of society, obligated to all human beings
i ) Seems that this is less scientific and more sympathetic to humans i i) Would expect more about skill
2) Notes pg 199
a) Courts have disagreed about the nature of a duty to notify even in the absence of the physician patient contract
b) How should the law recognize a higher, "fiduciary", duty on the part of health care providers to a person not yet a contractual patient?
i ) Hans Jonas opinion - a patient lacks equality in the relationship bc they are i gnorant of medicine and uncertain about treatments. The law, acknowledging this inequality, has created legal frameworks to equalize the relationship and empower the patient. The doctrine of informed consent is an example, but disclosure obligations go beyond informed consent, to include disclosure of possible economic conflicts of interest, and even personal shortcomings of the physician independent of treatment risks, such as alcoholism.

c. Second thing to look at is if K
The K between Patient and Physician
i. More like a quasi contract than a true contract.
1) Physician has a great deal of power going into the K.
2) Usually implied contracts, hardly ever express contracts. 3) Terms fixed in advance: Physician sets the hours of the office, requirements of the patient, sets the billing practices, so no bargaining power there for patient. The performance of the physician is also limited by their individual specialty. A Notes Page 5

performance of the physician is also limited by their individual specialty. A physician under certain circumstances to another provider, ex: refer to a specialist if physician is just a GP. A physician can also refuse to treat a patient. Do not have to treat outside of specialty. If you have an agreement, physicians are not obligated to go beyond the agreement.

4) Other fiduciary duties physician owes
a) Telephone convo usually not part of K
5) K ceases once physician can not do anything else for patient unless K was for a specific reason like deviated septum surgery.
i i. Physicians in Institutions
1) If physician is employed with an institution, their K is with the institution, but they are e xpected to treat patients who come into the institution
2) Millard v. Corrado :
a) Facts: Surgeon, Corrado, at AMC hospital asked another Dr to fill in for his "on call" shift bc he was going away to a conference. He did not inform anyone at the hospital, except for the other doctor. The other Dr did not have privileges at AMC for general surgery bc he was an orthopedic doctor. The P, Milliard, got i nto an accident and was brought to AMC by the ambulence. P was evaluated by the Dr and another physician who determined she needed surgery, but they were not eligible to perform it. The Surgeon was paged a few times and when he was told abt P's condition, the Surgeon suggested she be transported to another hospital. P had the surgery 4 hrs after the accident. She brought suit against the Surgeon for negligence, loss of consortium (sue bc no sex), and damages.

b) Issue: Does a patient-physician relationship exist when the physician diagnoses or treats a patient or contracts with the patient, the emergency room physician, or the hospital to provide medical services?

c) D argues he has no obligation bc no physician-patient relationship. d) Rule: A patient-physician relationship can exist when the physician diagnoses or treats a patient or contracts with the patient, the emergency room physician, or the hospital to provide medical services.

e ) Holding/Reasoning:
i) Statute in Missouri - that if physician on duty they have to come to hospital within 20- 30 mins. So any one who would go to hospital would e xpect this response
i i) General theory of negligence - A duty of care arises out of circumstances in which there is a foreseeable likelihood that particular acts or omissions will cause harm or injury. Here, it was reasonably foreseeable that because of Corrado’s failure to notify AMC that he would not be on call the EMTs would rely on the availability of a surgeon on AMC to treat Millard.

i ii) General medical negligence: Do not need physical contact if there is a contractual obligation. Here, there is a statute that exists and hospital by l aws. So if the hospital has a contractual obligation to her, then the physician has a contractual obligation towards her, and thus, a patient physician relationship. One. Note: Dr's generally get privileges at hospitals so that they may operate at hospitals, but this mean they have to abide by the bylaws of the hospital.

iii. Then ask: can you contract for a specific result?
1) Yes
Specific promises and warranties of cure
1) Built into health law is the understanding that a physician can be competent and still make an error. But when a physician makes specific promise/warranty they can be held liable
a) Notes of physician are very impt in determination. Will not trump what patient Notes Page 6

held liable
a) Notes of physician are very impt in determination. Will not trump what patient says, but still impt
2) Mills v. Pate
a) Facts: P signed an informed consent. received lypo and was not happy with the results. She went back to the surgeon who told her her skin would be smoothed. P was still unhappy and went to a different surgeon who performed a body lift. P then sued her original surgeon for breach of express warranty. b) Issue: May a physician be held liable for breach of express warranty if the promises made of particular surgical results are not based on a breach of the physician’s accepted standard of medical care?

c) Rule: A physician may be held liable for breach of express warranty if the promises made for particular surgical results are not based on a breach of the physician’s accepted standard of medical care.

i) Physicians can make a promise, but it is not a wise decision bc it can be taken as a warranty
d) Holding/Reasoning: Pate told Mills that she was a suitable candidate for the l iposuction procedure and that she would look beautiful and have smooth skin without ripples, bulges, or sags after the procedure was completed. Pate breached those promises when the medical services he rendered did not live up to his statements. Pate’s remarks, promised results, and Mills’ sustained injuries raise genuine issues of material fact precluding the granting of summary judgment. Pate asserts that the supposed promises he made to Mills are required to be in writing according to the statute of frauds. While the statute of frauds does require that an agreement relating to medical care or results must be in writing and signed by the person charged, the lack of such writing is an affirmative defense that Pate is required to plead and prove. So remanded e ) notes:

i) When a K to have a specific physician perform a procedure and physician doesn’t then physician is liable. Unless:
One. Teaching hospital, often the physician will be there while the procedure is being performed, but a student will be doing the surgery
Two. OBGYN- often time a physician in the obgyn's group will perform the actual pregnancy, if the specific obgyn is not on call.
ii) Common areas of warranty are usually plastic surgery and fertility. These are two areas where there is a lot of competition, so the physicians will agree in the K to do the surgery again if the patient is not happy with the results.

One. Fertility- problem with warrantee is that so many things can go wrong and so much uncertainty with medicine
iv. Exculpatory Clauses: a clause that forbids individuals to sue 1) Tunkl v. Regents of Univ of California
a) Facts: P was selected to participate in a research project conducted by the UCLA hospital operated and maintained by the Regents of the University of California (Regents) (D). Upon admission, Tunkl signed a “conditions of admission” document including an exculpatory clause stating that he would release the Regents from any liability resulting from the negligent or wrongful acts or omissions of its employees if the Medical Center had used due care in hiring the employees. At the time of signing the document, Tunkl was in great pain, under sedation, and likely unable to read the document. Tunkl brought suit to recover damages for personal injuries he sustained from the negligence of two physicians employed at the Medical Center. Prior to trial, Tunkl died and his wife, as executrix of his estate, was substituted as plainti". Tunkl stipulated that the physician employees of the Medical Center had been selected with due care. Hospital argued that P signed a release of liability.

b) Issue: May a hospital use an exculpatory clause to bar a patient’s medical Notes Page 7

b) Issue: May a hospital use an exculpatory clause to bar a patient’s medical malpractice action if it provides services in the public interest and possesses superior bargaining strength?
c) Rule: A hospital that provides medical services to the public, is subject to public regulation, and possesses superior bargaining strength over its patients may not use an exculpatory clause barring a patient’s malpractice action. d) Holding/Reasoning: Due to the essential nature to patients of receiving needed medical treatment, a hospital possesses an advantage of bargaining strength that it relies on when placing documents in front of a patient that must be Signed (adhesion). D’s exculpatory provision clearly meets the public interest requirement. Although the Medical Center selects patients suitable for the research and training it specializes in, such selectivity does not negate its public i nterest status. Once the patient signs the adhesion contract, he is at the mercy of potential recklessness or negligence from physicians.

e ) Notes:
i ) policy issues: Dr.'s will be worried about being sued all of the time if e xculpatory clauses are not allowed.
i i) Cap on recovery and damages, getting rid of punitive damages is a big i ssue.
v. Partial limitations on the right to sue
1) Shorter v. Drury
a) Facts: P was a Jehovah Witness who could not receive blood transfusions. She had a “missed abortion,” a condition in which a fetus dies and the uterus fails to discharge it. To guard against infection, a dilation and curettage was recommended. Of the three possible procedures the D chose the one with the highest risk of bleeding. He explained the risk but did not tell her of the other two methods. She also got a back up opinion which said the procedure was proper, but high risk of bleeding. At the hospital, the P's signed a document releasing the hospital, physicians, and staff from all liability stemming from her refusal to accept blood if needed (consent form). During the procedure, Drury l acerated Doreen’s uterus causing her to bleed profusely. Physicians’ repeated attempts to have Doreen, as well as Elmer, consent to a blood transfusion were rejected. Doreen bled to death. Mr. Shorter filed a wrongful death action alleging P's negligence proximately caused Doreen’s death. b) Issue: May a contract releasing a physician from liability resulting from negligent acts be upheld as valid?

c) Rule: A contract against liability for negligence will be held valid except in cases where the public interest is involved.
d) Holding/Reasoning: Shorter's knowingly and voluntarily signed a document stating that all blood was refused, even if needed during the procedure. The release protected the hospital, the physician, and the Shorter's from accepting blood, which is against their faith. The refusal is valid and not against public policy. However, the document does not release Drury from liability for his negligence. Jury correctly found that Drury’s negligence was the proximate cause of Doreen’s death. However, the P's specifically accepted the risk that Doreen could have bled during the operation and that the refusal of blood or blood derivatives could lead to her death.

e ) judgment: Verdict in favor of P but reduced her damages by 75% because she assumed the risk by not allowing for a blood transfusion
d. Confidentiality
i. Also look at HIPPA stuff from problem set #2
ii. Suit against hospital for breach of confidentiality (Doe v. Medlantic) i ii. Humphers v. First Interstate Bank of Oregon
1) Facts: P put baby up for adoption. Medical records about birth were sealed from public. Only her mother and Dr. knew. The child sought info from Dr to try and find birth mother to ask questions abt health. Dr. gave some info and child was able to Notes Page 8

birth mother to ask questions abt health. Dr. gave some info and child was able to find birth mother. Birth mother sued Dr's estate for invasion of privacy, breach of confidential relationship, etc.

2) Issue: May a physician be held liable for damages if he reveals confidential i nformation learned in the context of a physician -patient relationship without consent?
3) Rule: A physician may be liable for damages if he reveals confidential information learned in the context of a physician -patient relationship without consent 4) Holding/Reasoning: breach of confidential relationship and invasion of privacy has different burdens of proof and other requirements. the individual who holds confidential information can be charged with a breach of confidence, unlike an i nvasion of privacy tort which could apply to anyone who informed the child of facts of her birth. Simply knowing facts about an individual’s location does not give rise to an invasion of privacy claim. In this case, the Dr did not pry into a confidence but i nstead, failed to keep one. So, P's invasion of privacy theory fails. However, P's breach of confidential relationship theory is valid bc Dr. breached his duty to patient. State law requires physicians to keep medical and related information about a patient in confidence or otherwise be disciplined (HIPAA). e. Informed Consent-look at problem 1

i . Origins:
1) Individual autonomy - we have the right to make our own choices. And these rights should extend to something as personal as medical choices.
2) Also came from battery - right to be free from Unconsented touching 3) Justice Cardozo - Scholoendorff v. Society of NY Hospital (1914) - "Every human being of adult years and sound mind has a right to determine what shall be done with his own body."

4) Prof Alexander Capron - doctrine serves 6 functions: It can: a) Protect individual autonomy
b) Protect the patient's status as a human being
c) Avoid fraud or duress
d) Encourage doctors to carefully consider their decisions
e) Foster rational decision-making by the patient
f) Involve the public generally in medicine
5) Jay Katz- founders, main proponent of informed consent
ii. Legal framework of informed consent
1) Negligence as a basis for recovery
a) Canterbury v. Spence
i) Facts: P experienced severe upper back pain and was examined by Dr. Spence (D), a neurosurgeon. D recommended that P undergo a
l aminectomy, an operation to repair a suspected ruptured disc. P did not object to nor did he ask any questions about the procedure. D spoke to P’s mother by telephone and informed her that she did not need to come to the hospital and the operation was no more serious “than any other operation.” P's mother signed a consent form after the procedure was performed. Post-operation, P began recuperating normally until he fell from his hospital bed. After a second operation, P suffered d long -term i ncontinence and bladder paralysis. P brought a medical malpractice action against D and the hospital for a negligent failure to disclose risk risk of paralysis inherent in the surgery and negligent post -operative care. ii) Issue: Is a physician, prior to a medical procedure, under a duty to disclose all risks that a reasonable person would find significant in making an informed decision whether to undergo the specific procedure? i ii) Holding/Reasoning: Yes. "it is the prerogative of the patient, not the physician, to determine for himself the direction in which his interests seem to lie." It is the right of the patient, not the physician, to decide for himself whether to pursue a proposed operation recommended by the Notes Page 9

himself whether to pursue a proposed operation recommended by the physician. But the patient does not have the requisite knowledge to make that choice so a physician has a duty to inform the patient so that they may make a knowledgeable decision. A physician’s duty to disclose i s governed by conduct that is reasonable under the circumstances. Once that duty arises, the next question is the scope, the appropriate scope is any information that is sufficient and material for the patient to make an informed decision regarding a proposed course of treatment. It is objective. A material risk that should be disclosed to a patient is one that the physician knows or should know that a reasonable person would find significant in determining whether to undergo the proposed treatment. (not the community standard of what other physicians would do). Ct will i mpose liability upon a physician if it determines that the physician’s communication to a patient regarding the risks was unreasonable or i nadequate.

b) Notes:
◊ Doc should consider disclosure of the following factors
One. Diagnosis
Two. Nature and purpose of the proposed treatment
Three. Risks of the treatment alternatives
Four. Consequences of patient refusal of tests or treatments Five. Disclosing the tradeoffs of treatment versus watchful waiting First. Area this is impt for is prostate cancer bc it can be found in a very early stages but do not know which of the cancers will

turn into something life threatening. So men are faced with
a range of treatments: from removing prostates, to
radiation, to watchful waiting (men get tests to see if there has been any change- living with cancer in body and seeing
what happens).
1. If doc leaves any of these options out they violate
informed consent.
i) If Doc gives patient an opportunity to listen and make a choice and the patient says he doesn’t want to know he wants the doc to decide, the doc can decide bc of patient autonomy.
ii) If doc makes a genuine effort to inform patient and the patient still does not understand, the doc will not be held liable bc courts do not want to get involved with the doc-patient relationship.

iii) Why has it come down to a list of reqs and a form?
One. Time
Two. Safety-net for docs against liability
iv) Lack of info must cause damages for recovery
2) Disclosure of Physician- Specific Risk Information
a) Johnson v. Kokemoor
i ) Facts: D diagnosed P as having an enlarging aneurysm in the rear of her brain. D recommended surgery to clip the aneurysm, the surgery was one of the most difficult to perform in neurosurgery. Before the operation, D informed P that he had performed the procedure “dozens of times,” and compared the seriousness of it to a tonsillectomy or gall bladder surgery. D also told P that there was a 2 percent risk of death when in reality it was closer to a 30 percent chance when performed by inexperienced physicians. D did not mention that P had the option of having the procedure performed by more experienced surgeons. P agreed to the operation. As a result of the operation, D became a wheelchair dependent quadriplegic with impaired vision, speech, and other i mpairments. She brought suit against D for failing to properly obtain her i nformed consent to the operation.

Notes Page 10

i nformed consent to the operation.
ii) PH: After trial, jury found in favor of P. D appealed arguing that the trial court erred in admitting physician -specific evidence including D's failure to i nform P of his lack of experience in performing the operation, his failure to properly compare mortality rates among experienced and

i nexperienced surgeons, and his failure to refer Johnson to more experienced surgeons. CoA reversed, P appealed
iii) Issue: May trial courts admit specific evidence of a physician’s statements and conduct to determine whether a patient had sufficient, material i nformation to make an informed and intelligent decision to consent to suggested medical treatment?

i v) standard: had a reasonable person in her position been aware of D's lack of experience in performing the operation, the person would not have undergone the operation (objective standard from Canterbury). v) Holding/reasoning: Yes. A patient cannot make an informed, intelligent decision to consent to a physician’s suggested treatment unless the physician discloses what is material to the patient’s decision, i.e., all of the viable alternatives and risks of the treatment proposed (objective RULE). Had a reasonable person in P's position been made aware that the risk of death was closer to 30 percent, he or she would not have had it performed. When different physicians have substantially different success rates with the same procedure and a reasonable person in the patient’s position would consider such information material, the trial court may admit the statistical evidence.

vi) D argues that statistics should not be admissible in trial vii) Ct says they can be admissible, but cannot make an overarching rule that they are admissible in all cases. In this situation the statistical evidence was integral to claim so wa...

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