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Preparation
and Trial of Medical Malpractice Cases
Richard
E. Shandell and Patricia Smith
Detailed
Table of Contents
PART I: Ascertaining
a Medical Malpractice Claim
CHAPTER 1
Elements of a Cause of Action
§ 1.01 General Elements
[1] Duty
[2] Standard of Care
[3] Proximate Cause
[4] Damages
§ 1.02 The
Physician's Liability to Third Parties
[1] In
General
[2] Communicable Diseases
[3] Psychiatric Patients
[4] Automobile Accidents
[5] Organ Donations
[6] Caretakers
[7] Refusal of Hospitalization
[8] Hereditary Diseases
[9] Other Physicians Relying on Diagnosis
§ 1.03 Wrongful
Birth and Wrongful Life
[1] Wrongful
Diagnosis
[2] Wrongful Pregnancy
[3] Wrongful Birth
[4] Wrongful Life
[5] Prenatal Injuries
[6] Wrongful Sterilization; Loss of Offspring
[7] Preconception Torts
§ 1.04 Acquired
Immunodeficiency Syndrome (AIDS)
[1] Introduction
[2] Statute of Limitations
[3] Confidentiality
[4] Infection
[5] Duty to Treat
§ 1.05 Negligent
Infliction of Emotional Distress in the Medical Malpractice Context
[1] Introduction
[2] Physical Injury or Impact Rule
[3] Zone of Danger
[4] Foreseeability
[5] Misdiagnosis
[6] AIDS
[7] Labor and Delivery
§ 1.06 Other
Particular Theories of Recovery
[1] Abandonment
[2] Strict Products Liability
[3] Fraud
[4] Breach of Contract
[5] Wrongful Living (Denial of Right to Die)
[6] Battery
§ 1.07 Countersuits
CHAPTER 2
The Initial Evaluation
§ 2.01 Interviewing the Client
§ 2.02 The Damage Threshold
[1] Evaluating
Potential Damages
[2] Evaluating Liability
§ 2.03 Hints
on Recognizing a Meritorious Case
[1] Surgical
Cases
[2] Hospital Cases
[3] Available Medical Records
[4] Failure to Diagnose
[5] Underlying Facts and Causation
[6] Some Classic Repetitive Cases
[7] The Good Samaritan Doctrine
CHAPTER 3
Statutes of Limitations
§ 3.01 Introduction
§ 3.02 Discovery Rule
§ 3.03 Foreign Object Rule
§ 3.04 Continuing Treatment Rule
[1] In
General
[2] Effect of Gap in Treatment
[3] Continuing Course of Conduct
§ 3.05 Infancy
Rule
§ 3.06 Fraudulent Concealment
§ 3.07 Wrongful Death
§ 3.08 Statutes of Repose
CHAPTER 4
Informed Consent
§ 4.01 Introduction
§ 4.02 Standards Governing Extent of Disclosure
[1] Prudent
Patient Rule
[2] Professional Standard of Disclosure
[3] Risks Itemized by Medical Boards
§ 4.03 Causation
[1] Introduction
[2] Objective Standard
[3] Subjective Standard
§ 4.04 Exceptions
to Informed Consent
[1] Introduction
[2] Emergency Treatment
[3] Implied Consent
[4] Noninvasive or Routine Treatment
[5] Common Knowledge
[6] Physician Unaware of Risk
[7] Hospitals
[8] Referring Physician
[9] Non-Recommended Procedures
[10] Therapeutic Privilege
§ 4.05 Consent
Forms
CHAPTER 5
The Initial Medical Investigation
§ 5.01 Assembling the Medical Data
§ 5.02 Understanding and Analyzing the Hospital
Record
[1] Components
of the Hospital Record
[2] Altered Records
[3] Emergency Room Records
[4] Labor and Delivery Records
[5] Anaesthesia Records
§ 5.03 A
Basic Medical Library for the Attorney
CHAPTER 6
Res Ipsa Loquitur
§ 6.01 Definition
§ 6.02 Historical Application
§ 6.03 Rules for Application
§ 6.04 Doctrine of Alternative Liability
CHAPTER 7
Securing the Medical Expert
§ 7.01 Expert Witness Requirement
[1] In
General
[2] Exceptions
§ 7.02 Qualifications
of Expert
[1] Who
May Testify
[2] Locality Rule
§ 7.03 Sources
of Experts
§ 7.04 Disclosure of Experts
PART II: Commencing
the Action
CHAPTER 8
Whom to Sue
§ 8.01 Choosing the Defendants
§ 8.02 The Hospital
[1] In
General
[2] Historical Development
[3] Vicarious Liability
[4] Corporate Negligence
[5] Refusal to Treat Patient
[6] Charitable Immunity
[7] Sovereign Immunity
§ 8.03 Nurses
[1] Direct
Liability
[2] Vicarious Liability of Hospital or Physician
§ 8.04 The
Anaesthetist
§ 8.05 Multiple Physicians
§ 8.06 The Surgeon as "Captain of the Ship"
§ 8.07 Municipal Hospitals
§ 8.08 The Professional Corporation
§ 8.09 Federally Funded Community Health Centers
§ 8.10 The Health Maintenance Organization (HMO)
[1] Nature
of Organization
[2] Types of HMOs
[3] Theories of Liability
[4] ERISA Preemption
§ 8.11 Alternative
Medicine Practitioners
CHAPTER 9
The Complaint
§ 9.01 Notice Requirements
§ 9.02 Requirements of the Complaint
CHAPTER 10
The Bill of Particulars
§ 10.01 The Role of the Bill of Particulars
§ 10.02 Requirements of the Bill of Particulars
§ 10.03 Practical Considerations in Drafting the
Bill of Particulars
CHAPTER 11
Discovery and Disclosure
§ 11.01 Modern Discovery Techniques
§ 11.02 What to Discovery
[1] Rules
and Regulations
[2] Logs
[3] Incident Reports
[4] Reports of Evaluation and Review Committees
[5] Office Records
§ 11.03 Miscellaneous
Discovery Comments
[1] Physician-Patient
Privilege of Other Patients
[2] Procedure
§ 11.04 The
Plaintiff's Deposition
§ 11.05 The Deposition of the Defendant Physician
[1] Potential
Defenses
[2] Information to be Ascertained
[3] Smoking Out the Defense
[4] Specific Questions to be Asked
§ 11.06 Ex
Parte Interviews of Treating Physicians
§ 11.07 Physical Examination
CHAPTER 12
Medical Malpractice Panels
§ 12.01 Introduction
§ 12.02 Constitutionality
§ 12.03 Practice and Procedure
[1] Condition
Precedent to Litigation
[2] Composition of Panel
[3] Evidentiary Requirements
§ 12.04 Diversity
Cases
§ 12.05 Tactics in Presenting Before a Panel
CHAPTER 12A
Motion Practice
§ 12A.01 Summary Judgment 12A-1
§ 12A.02 Medical Malpractice Claims for Summary
Judgment 12A-5
[1] Liability
12A-5
[2] Informed Consent 12A-5
[3] Agency 12A-5
[4] Statute of Limitations
PART III: The Trial
CHAPTER 13
Jury Selection
§ 13.01 Educating the Jury
§ 13.02 Composition of the Jury
§ 13.03 Purposes and Benefits of Voir Dire
CHAPTER 14
The Opening Statement
§ 14.01 Purpose
§ 14.02 Points to Emphasize
CHAPTER 15
The Order of Proof and Evidentiary Issues
§ 15.01 Presentation of Witnesses
§ 15.02 Examination of the Defendants
§ 15.03 The Plaintiff's Expert
[1] Preparation
and Examination
[2] Admissibility of Expert Testimony in the Daubert
Era
§ 15.04 Presenting
the Plaintiff
[1] In
General
[2] Plaintiff's Contributory or Comparative Negligence
§ 15.05 Cross
Examination of the Defense Experts
§ 15.06 Evidentiary Issues
[1] Medical
Literature
[2] Medical Bills
[3] Habit
[4] Hospital Rules
[5] Hospital Accreditation Standards
[6] Other Incidents
[7] Alcohol and Drug Abuse
[8] Correspondence
[9] Insurance; Financial Ability
[10] License Examination Results
[11] Comparative Risk Statistics
[12] Accident or Ambulance Reports
[13] FDA Approval
CHAPTER 16
Summation
§ 16.01 In General
§ 16.02 Point to Remember
[1] Introduction
[2] Fair Comment On The Evidence
[3] Deductions and Inferences From the Evidence
[4] Personal Opinion
[5] Statements Regarding Standard of Care
[6] Statements Regarding Expert Witnesses
[7] Prejudice
[8] Statements Regarding Damages
[9] Arguments to Punish the Doctor
CHAPTER 17
Jury Instructions
§ 17.01 In General
§ 17.02 Specific Charges
[1] Abandonment
[2] Agency
[3] Circumstantial Evidence
[4] Contributory Negligence
[5] Damages
[6] Definitions
[7] Emergency
[8] Error in Judgment
[9] Guarantee
[10] Informed Consent
[11] Inherent Risk of Treatment
[12] Missing Evidence
[13] Proximate Cause
[14] Res Ipsa Loquitur
[15] Unavoidable Accident
[16] Unsuccessful Result
Appendices
Appendix A: Sample Depositions
Appendix B: Medical Brief
Appendix C: Defendant's Direct Examination
Appendix D: Direct Examination of Plaintiff's Expert
Appendix E: Demand for Bill of Particulars and Response
Index
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