Wednesday, February 16, 2011

Sample Medical Malpractice Case

Cobbs v. Grant:
8 Cal. 3d 229, 502 P.2d 1, 104 Cal. Rptr. 505 (1972)
Issue: Was the jury properly instructed?                                                                                                                                                             
Rule: Informed consent
Application: Injuries to the spleen that compel a subsequent operation are a risk inherent in the type of surgery performed on plaintiff and occur in approximately 5% of such operations.
-Defendant attacks both possible grounds for the jury verdict (negligence and lack of consent)
-There is not substantial evidence to support a jury verdict on the issue of defendants liability on the theory that he was negligent either when he decided to operate or in performing the surgery.
-Because there was a general verdict, it is impossible to know what theory the jury found the defendant guilty on.
Informed Consent: Battery vs. Negligence
-Battery: Where a doctor obtains consent of the patient to perform one type of treatment and subsequently performs a substantially different treatment for which consent was not obtained, there is a clear case of battery.
-Negligence: When the patient consents to certain treatments and the doctor performs that treatment but an undisclosed inherent complication with a low probability occurs, no intentional deviation from the consent given appears; rather, the doctor in obtaining consent may have failed to meet his due care duty to disclose pertinent information.
Court Instruction to Jury: A physicians duty to disclose is not governed by the standard practice in the community; rather it is a duty imposed by law. A physician violates his duty to his patient and subjects himself to liability of he withholds any facts which are necessary to form the basis of an intelligent consent by the patient to the proposed treatment"
Defendants objections to instructions:
  1. Points out that the majority of the California cases have measured the duty to disclose not in terms of an absolute, but as a duty to reveal such information as would be disclosed by a doctor in good standing within the medical community
    1. With one state and one federal exception, all have adopted this standard
  1. This near unanimity reflects strong policy reasons for vesting in the medical community the unquestioned discretion to determine if the withholding of information by a doctor from his patient is justified at the time the patient weighs the risks of the treatment against the risks of refusing treatment.
    1. This has never been unequivocally adopted by an authoritative source.
Examine the Standard:
  1. Patients are generally persons unlearned in the medical sciences and therefore, except in rare cases, courts may safely assume the knowledge of patient and physician are not in parity
  2. A person of adult years and in sound mind has the right, in the exercise of control over his own body, to determine whether or not to submit to lawful medical treatment
  3. The patient's consent to treatment, to be effective, must be an informed consent
  4. The patient, being unlearned in medical sciences, has an abject dependence upon and trust in his physician for the information upon which he relies during the decisional process, thus raising an obligation in the physician that transcends arms-length transactions.
-Physician must divulge to the patient all information relevant to a meaningful decisional process.
-Defendant and the majority of courts have stated the measure of the duty is to the custom of physicians practicing in the community.
-This is needlessly overbroad, doctors become vested with virtual absolute discretion.
-The patient should be denied the opportunity to weigh the risks only where it is evident he cannot evaluate the data (e.g. when there is an emergency, or if the patient is a child or incompetent)
Scope of Disclosure required:
-Full Disclosure:
  1. The patients interest in information does not extend to a lengthy polysyllabic discourse on all possible complications. The patient is concerned with the risk of death or bodily harm, and the problems of recuperation
  2. There is no physician's duty to discuss the relatively minor risks inherent in common procedures, when it is common knowledge that such risks inherent in the procedure are of very low incident
-When the given procedure inherently involves a known risk of death or serious bodily harm, a medical doctor has a duty to disclose to his patient the potential of death or serious harm, and to explain in lay terms the complications that might possibly occur.
-There must be a causal relationship between the physician's failure to inform and the injury to the plaintiff.
-Only if it is established that had revelation been made consent to treatment would not have been given.
Conclusion: No, negligence was erroneous
-August 1964: Plaintiff admitted to the hospital for treatment of a duodenal ulcer.
-Was given a series of tests to ascertain the severity of his condition and, though administered medication to ease his discomfort, he continued to complaint of lower abdominal pain and nausea
-Dr. Jerome Sands, the Family Physician, concluded that surgery was indicated, discussed prospective surgery with plaintiff and advised him in general terms of the risks of undergoing a general anesthetic
-Dr. Sands called in Dr. Grant, defendant surgeon, who after examining plaintiff, agreed with Dr. Sands that plaintiff had an intractable peptic duodenal ulcer and that surgery was indicated.
-Dr. Grant explained the nature of the operation to the plaintiff, he did not discuss any of the inherent risks of the surgery.
-Next day: A 2 hour operation was performed, during which the presence of a small ulcer was confirmed.
-Following the surgery, the ulcer disappeared.
-For the next 8 days, plaintiff recovered in the hospital and was released to his home.
-Day after getting home: Plaintiff began to experience intense pain in his abdomen
-Immediately called Dr. Sands, who advised him to return to the hospital.
-2 hours after returning the hospital, plaintiff went into shock and emergency surgery was performed.
-Emergency surgery: It was discovered plaintiff was bleeding internally as a result of a severed artery at the hilum of his spleen
-Due to the seriousness of the hemorrhaging and since the spleen of an adult may be removed without adverse effects, defendant decided to remove the spleen
 -After removal of his spleen, plaintiff recovered for 2 weeks in the hospital.
-One month later, he was readmitted because of sharp pains in his stomach.
-X-Rays disclosed plaintiff was developing a gastric ulcer
-The evolution of a new ulcer is another risk inherent in surgery performed to relieve a duodenal ulcer
-Dr. Sands initially attempted to treat this nascent gastric ulcer with antacids and a strict accident.
-4 months later, plaintiff was again hospitalized when the gastric ulcer continued to deteriorate and he experienced severe pain.
-Plaintiff began to vomit blood, defendant and Dr. Sands concluded that a third operation was indicated: a gastrectomy with removal of 50% of plaintiffs stomach to reduce its acid-producing capacity.
-Plaintiff was discharged, but subsequently had to be hospitalized yet again when he began to bleed internally due to the premature absorption of a suture, another inherent risk of surgery
-Plaintiff was hospitalized, and the bleeding began to abate and 1 week later was released
-Brought this malpractice suit against his surgeon, Dr. Grant, and a similar action against the hospital

Procedural History:
-Trial: Jury returned a general verdict against the hospital in the amount of $45,000 and $23,800 against defendant Grant.

-Could have found for plaintiff either by determining that defendant negligently performed the operation, or on the theory that defendant's failure to disclose the inherent risks of the initial surgery violated the plaintiff's consent to operate

Tuesday, February 15, 2011

Support a Friend

Hey all, sorry I haven't been real active lately, I've been really busy with schoolwork and my internship. For now, send me some comments about what types of law-related articles you'd like to see.

Also: Visit my friends blog, he's just starting.

Random Contracts Notes

Sorry I haven't provided an update in a while, I've been pretty busy with school.

For all you law fans out there, here's some of my notes for yesterday's class (Contracts)

CBS, Inc. v. Ziff-Davis Publishing, Co.:
Court of Appeals of New York
75 N.Y.2d 496 (1990)
Issue: Was the express warranty violated?
Rule: Express Warranty
Application: CBS claimed that Ziff had breached the warranties made as to the magazines' profitability.
-Ziff argued that because CBS did not believe the claims to be true, no warranty existed.
-Under Ziff's theory, the reliance which is a necessary element for a claim of breach of express warranty is essentially that required for a tort action based on fraud or misrepresentation
-Belief in the truth of the representations made and a change of position in reliance of that belief
-Cites Croker-Wheeler Elec. v. Johns-Pratt
-CBS maintains that the decisive question is whether it purchased the express warranties as bargained-for contractual terms that were part of the purchase agreement.
-Cites Ainger v. Michigan Gen. Corp., and Judge Learned Hand's definition
-The analysis of the reliance requirement in actions for breach of express warranties urged by CBS are correct.
-Crucial question is not whether the buyer believed in the truth of the warranted information, but rather if it believed it was purchasing the seller's promise as to its truth
-The express warranty is as much a part of the contract as any other term, and that an action for breach of express warranty is not grounded in tort, but in contract
-Ziff and the dissent rely upon Croker, which says that for an action for breach of express warranty to survive, it must be established that the warranty was relied upon
-The financial information pertaining to the income and expenses of the consumer magazines was relied on by CBS in forming its opinion as to whether the value of the businesses and in arriving at the amount of its bid.
-CBS was not merely buying the business, it was buying the business, to which it believed to be profitable to a certain extent.
-Determinative Question: Should Ziff be relieved from any contractual obligation under these warranties, because, prior to closing, CBS questioned the accuracy of the financial information and because CBS, when it closed, did so without believing in or relying on the truth of the information?
-A holding that it should because CBS questioned the truth of the facts warranted would have the effect of depriving the express warranties of their only value to CBS
Conclusion: Yes, even though CBS doubted the validity of the claim.

History: Sale of Ziff magazines to CBS.
-Ziff's accountant, Touche Ross & Co., prepared a financial statement, for the fiscal year ending July 31, 1984.
-CBS made a bid to purchase Ziff $362,500,000
-This bid was the highest bid.
-Nov 19, 1984: CBS and Ziff enter into a binding bilateral purchase agreement for the sale of the consumer magazine business.
-Section 3.5: Ziff warranted that the audited income and expense report of the business for the 1984 fiscal year, had "been prepared in accordance with generally accepted accounting principles (GAAP)," and that the report presented fairly the items set forth
-Ziff agreed to furnish an interim income and expense report of the business under section 3.5 from July 31, 1984 until the closing, there had not been any material adverse change in Seller's business and publishing and distributing of publications, taken as a whole (STUB REPORT)
-Section 6.1: Provided that "all representations and warranties of seller to buyer shall be true and correct as of the time of the closing."
-Section 8.1: Parties agreed that all "representations and warranties… shall survive the closing notwithstanding any investigation made by or on behalf of the other party.
-Section 5.1: Ziff gave CBS permission to "make such investigation" of the magazine business being sold "as it might desire"
-Jan 30, 1985: Ziff delivered the required Stub Report to CBS
-CBS, acting under section 5.1, had performed its own "due diligence" examination of Ziff's financial condition, and found that their report may not be entirely accurate.
-Jan 31, 1985: CBS writes letter stating their beliefs of misrepresentation
-Feb 4, 1985: Ziff responds, argues that there is no merit in the position, and if CBS doesn't go through, it will take legal action.
-Feb 4: CBS acknowledges that there is a clear dispute, but decides to go forward with the deal, because of the time, effort, and money put into it thus far.

-CBS brings current action, alleging that Ziff breached the warranties made as to the magazines profitability
-Based on that breach, CBS alleges that "the price bid and the price paid by CBS were in excess of that which would have been bid and paid had Ziff not breached its representation and warranties

Sunday, February 13, 2011

Fedor Dominated

So my picks were clearly pretty wrong, haha. Fedor ended up getting absolutely dominated by "bigfoot," who is now set to face the winner of Overee vs. Werdum on April 9th.

Complete Results:
Silva def Fedor via TKO (doctor stoppage): End of round 2
Kharitonov def Arlovski via KO (punches): 2:49 Round 1
Del Rosario def Johnson via Submission (armbar): 4:31 Round 1
Griggs def Villante via TKO (punches): 2:49 Round 1
Overeem def Sefo via Submission (neck crank): 1:37 Round 1

Saturday, February 12, 2011

Strikeforce: Fedor vs. Silva Predictions

Overeem def Sefo: 2nd round KO
Villante def Griggs: 1st round TKO
Del Rosario def Johnson: Unanimous decision
Arlovski def Kharitonov: 3rd round KO
Fedor def Silva: 1st round KO

Let's see how well I do!

Event airs live at 7 p.m. PST

Friday, February 11, 2011

The Best Fighters in the World

Don't have a whole lot of time before class today, so I've decided to post a highlight video of arguably the best fighter in the world. Anderson "the Spider" Silva
 Here is his only competition. Manny Pacquiao
I'll leave it to you to decide who is better. Here's some facts: Silva fights in the UFC (mma), while Pacquiao is a boxer; they both have 13 fight win streaks; Silva has never been KO'ed or TKO'ed, while Pacquiao has been; Pacquiao holds 8 titles, in 6 different weight classes, while Silva only has the middleweight championship; they are both trained by Freddie Roach.

Thursday, February 10, 2011

Criminal Law and Mens Rea: Explained!

In criminal offenses, generally, the state needs to prove the requisite mens rea (state of mind) to establish guilt. While the common law has a confusing amount of different requirements of mens rea for a crime (e.g., "malice aforethough" or "reckless disregard"), we will not cover those, because we have lives, and don't want to needlessly waste time on useless things like that. In contrast to the common law concepts of mens rea are the Model Penal Code's 5 levels of mens rea. Today, we will be talking about the Model Penal Code (which nearly every state has adopted some form of), and the different levels of mens rea requisite for every crime.

Five levels of mens rea:
1. Purposely:
A person acts purposely with respect to a material element of an offense when:
(i) if the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result; and
(ii) if the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist.

2. Knowingly:
A person acts knowingly with respect to a material element of an offense when:
(i) if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and
(ii) if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result.

3. Recklessly:
A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation.

4. Negligently:
A person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that the actor's failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor's situation.

5. Strict Liability:
No mens rea needed. If you commit the crime, you do the time. This means if you go to a 21+ club where they check identification at the door, see a girl buy a drink, and even check the girls identification prior to your night of shenanigans with her, you can still be charged with statutory rape if it turns out she was 15, and used a fake id. Drunk driving is another example of a strict liability offense: if you drive drunk, and get caught, it doesn't matter what you were thinking.
The justification for this is hard to exactly pinpoint, but it seems that there are certain crimes that legislators have deemed highly dangerous, and want to prohibit at whatever cost.
Actually, it matters how young she is.
Prove your lawyering ability, describe the difference between negligently and recklessly!