Law of Medicine Legal Outline: Notes for Law School

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					Law and Medicine Outline
Torts: --physician liability, straightforward torts --dr-patient relationship --institutional liability – suing hospitals and HMO‘s --medical malpractice (insurance) crisis --HMO‘s tend to be the villain, not dr‘s --access to healthcare issues --ERISA – evil law acc. to prof Bioethics: --reproduction and birth --genetic issues --life and death decisions --experimentation w/ humans --allocation of scarce resources like organs for transplant—scarce but nec!! Strict Liability – almost never used against dr. or hospital; only used w/ products liability; what hospital is providing is not a product; it‘s providing a service even though there‘s use of products to give service --can use S/L w/ cases like needle breaking in dental patient‘s mouth or breast implants or using thorotrast w/ x-rays; court tries to see if transaction looks like a sale in deciding whether to use S/L Judicial Risk-Benefit Balancing: Helling v. Carey – even though it was custom for dr‘s to give pressure test for glaucoma only to patients over 40, court said risk of it outweighs benefit of not giving test so **court rejected std. of care of profession in favor of its own cost-benefit analysis **Custom may not match the reasonable std. of care Theories other than Malpractice p. 177 1) Negligent Infliction of Emotional Distress Campbell v. Delbridge: --J‘sW got blood transfusion against his consent --Main issue = whether expert testimony is needed on applicable std. of care --here, not nec. b/c lay opinion would suffice; issue is not abt std. of care issue = just if dr. violated patient‘s consent; don‘t need expert for this --jury is perfectly capable of deciding whether there was negligence --Problem in this kind of case = no physical harm caused here; no injury

--many of these cases are brought as battery cases b/c there was no consent to contact w/ blood; plus, patient didn‘t die so jury will have hard time seeing there was an injury especially when pl. survived b/c of transfusion Oswald v. Lebran: pl. thought she was about to deliver and medical staff and dr. ignored her; baby delivered prematurely and baby put on tray; baby squeezed dad‘s finger and dad realized baby was alive but it died later on --ct said you don‘t need expert testimony here! Anybody can see that std of care was violated!! --intentional infliction of emotional distress case, not negligent infliction  Intentional and Negl. Infliction of Emotional Distress --mostly, never need expert testimony here b/c facts/tort is so horrible, it‘s obvious there was emotional distress --Claim for emotional distress if you find out your Dr. had AIDS – not a claim unless you show you were harmed; remote possibility of harm not a claim 2) Duty to Contest Reimbursement Limit Wickline: Dr. didn‘t request an extension on hospital stay that was cut short by MediCal that was trying to cut its costs - problem in case – Dr. is in complete catch-22 b/c he must argue that 1) it was reasonable to discharge her in 4 days b/c he signed discharge order. Must show it was not negl to discharge her when she was discharged.  and if he was reasonable to discharge her in 4 days, then it was also reasonable for MediCal to approve 4 days. - All agree that pl‘s 3 treating dr‘s were responsible for deciding course of treatment, not ins co. - If ins co denies extension and refuses to pay, and patient refuses to pay, who will then pay for extension? Hospital must eat cost to extend stay and not be negligent -  Very important!!  ***Can sue HMO if it affects medical outcome of case HMO‘s save money on premiums if their gatekeeper dr‘s don‘t use referral services; don‘t refer patients to other dr‘s and dr‘s get more $ from more premiums too  Defenses to a Malpractice Suit: --3 defenses are stupid; question is not if there is alternative choice of treatment but if treatment chosen is REASONABLE! Chumbler: Pl. failed to show negl w/ fact that only 1 out 9 dr‘s use estrogen which his dr. gave him and that it‘s not reasonable; showing 1 out of 9 is not enough; must also show a reasonable dr. would not give this treatment Henderson: problem w/ breast implants – dr. intentionally slit it for silicon to come out – so obviously negligent today!! Dr. won! b/c pl. failed to prove that this was an unreasonable treatment at time of surgery.

 Defense of ―respectable minority‖ rejected by ct. = dr. not negl if ―respectable minority‖ of other dr‘s adhere to treatment at issue if defending medical error, just show whether that mistake was reasonable; if other reas. dr’s would’ve made same mistake, then ok Experimentation --If dr. tries a new treatment, atty can say ―so you were ‗experimenting‘ on that patient?‖ --2 kinds of experimentation: 1) therapeutic experimentation – s/t tested in ppl that‘s supposed to make them better 2) non-therapeutic – testing in ppl who don‘t have any illness Lots of strict regulation over experimentation B. Clinical Innovation Brook v. Mem. Hospital: --dr. was being innovative w/ a problem for which there was no solution. ask, would a reasonable dr. have done this in the same circumstances?? Don‘t call it experimentation; would a reas. dr. also do such an experiment? --experiment = do it to further human knowl; but here, it was to help girl - therapeutic --does dr. have to tell patient it is experimental? Yes! Std. for innovative practice is still whether reasonable dr. w/ try it Karp v. Cooley –Dr. Cooley tried artificial calf heart in patient Karp but he died. Lots of issues…informed consent, arg that Karp was not told proced. Was an ―experiment.‖ Arg was that pl. has to prove that a reasonable dr. would not have used artificial heart. Only expert on this was Dr. DeBakey who testified that I don‘t know a/t abt Dr. C‘s artificial heart; I only know about my own which would not have been ready. So ct said that he was not qualified on expert on Dr. C‘s heart. --if you‘re absolutely certain to die, and there‘s a procedure that might work, you might say yes to it…ct didn‘t see proced as experimental b/c saw it as therapeutic [wrong to say that experimental proced can‘t be therapeutic? –proced can be a therapeutic experiment **Clarify on experimental v. therapeutic Good Samaritan laws – solve problem of drs. Too scared to help ppl on street b/c of fear of suits – give dr‘s immunity --no evid that dr.‘s are really scared of this --no evid that such laws have even encouraged drs to help out when they wouldn‘t have otherwise – most dr.s would help out regardless of law in place --Then G/S laws were applied to dr‘s in ER and give them immunity; but then this was overturned b/c bad to let dr. off the hook who is already in hospital --cts. Stopped applying G/S law to ER but then also applied to dr. who is off duty in hospital who helps a patient in emergency who is not his patient – ct saw him as volunteer and let him be immune – wrong holding! b/c ct saying that dr. was volunteer means he had no obligation to help patient in hospital

in general, these laws don‘t apply to hospitals laws don‘t create duty to help Contributory fault Ostrowski: patient was diabetic, smoker, vascular disease; has ingrown nail so podiatrist took out her toenail which caused further injury to her and caused her to do bypass; pl. argued that dr. chose wrong/negligent treatment for her. --jury said patient was 51% negligent so she gets no recovery under comp. negl. app. Ct. said, **you take patient as you find them** so patient‘s conduct before treatment is not her fault --You are only liable in tort for damage that you cause; --comparative negligence looks at parties‘ negl BEFORE injury but here, dr. must take patient as he finds her. However, if patient fails to comply w/ dr‘s instructions post-op, then dr. not responsible for that – doctrine of avoidable consequences Learned Intermediary Rule --protects mfr‘s from liability b/c idea is that dr. has duty to tell patients all the risks of drugs as the one prescribing drugs– b/c patient can‘t understand drug warnings by himself and dr. is the one who decides what drugs patient needs (but this conflicts w/ informed consent) --dr. can argue that I wasn‘t adequately informed by drug co., blaming mfr. Perez: held, learned intermediary doctrine doesn‘t work if drug has been directly advertised to consumers…so mfr‘s can‘t argue that dr. is the one who prescribes drugs so only dr‘s are liable, but then why advertise to consumers? Mfr‘s ARE directly advertising to consumers so they must inform them too – have created their own duty to inform  when learned intermediary rule does not apply other than Perez – directed consumer advertising -  massive immunizations – ―swine flu story‖ – govt forced mfr‘s to give out vaccination so here dr‘s had no duty/ obligation to warn b/c ppl getting vaccinations were not seeing dr‘s; no dr. even involved so duty to warn is directly on mfr. also does not apply w/ birth control pills – b/c dr‘s don‘t do their job in explaining pills so mfr is liable? Causation --Discovery rule – relaxation of statute of limitations – normally, day of your accident/injury is day that ur stat.of lim starts to run – but w/ malpractice, you don‘t know that the day of your surgery, you have been injured  so w/ disc rule, stat of lim runs when you discover you have been injured – when pl. knows or should have known that there was injury  in Hardi, for disc rule, need 1) some knowledge of injury, 2) its cause in fact (that dr. did it), 3) some evid of wrongdoing on the part of the person responsible – negligence involved –know you have a suit most generous to plaintiff; gives most time 3 levels of disc rule – A) only knowledge of injury nec – least pro-pl. B) knowl of injury and cause of it

C) knowl of injury, cause, and that there‘s suit Hardi – problem w/ def‘s arg: def saying that pl. should‘ve known she was injured the day dr. misdiagnosed her. How the heck can she know dr. was wrong!!! Multiple Defendants --your liability matches the amount you contributed to injury = several liability instead of joint and several Damage Innovations: ―Loss of Chance‖ Doctrine Herskovits --39% chance of survival w/out negl - 25% survival after negl. = 14% chance of life lost --under conventional tort suit, this pl. would lose under preponderance of evid std. that by more than 50%, he lost chance to live --court doesn‘t want to release negligent dr‘s just b/c their negligence was less than 50% chance that their actions caused injury and point of torts is to deter negl. conduct --pl‘s were damaged and would not be compensated at all under prep. Of evid std. --pl‘s award would be 14% of chance of life lost --if chance of life lost was greater than 50% negl of dr, then dr. would have to pay full 100% of dam under loss of chance - Not fair to dr‘s Punitive Damages – rare in malpractice except like in obnoxious cases like Oswald or in abandonment cases where dr. refuses to see patient; in abandonment cases, issue can be was there dr-patient rel to begin w/? if not, dr‘s refusal is not abandonment **All tort suits are based on dr.-patient rel. [creates duty]; need this rel. to sue in torts --can also sue for breach of K, but these causes of action are rare Claims Based on Contract Theory: Dingle v. Belin: pl. said that dr. agreed to do cutting in her surgery but he didn‘t; resident did cutting and cut wrong duct. huge advantage of breach of K suit = there‘s strict liability for breach of K, not negl std. All you have to ask is was there breach? Yes or no? --but damages under K theory are harder to show – go by reliance or expectation? To get exp dam, must show that if dr. had done surgery, there would‘ve have been no error – very easy to argue b/c dr. won‘t argue that if I would‘ve done surgery, I would‘ve cut duct too. --problem w/ K argument: pl‘s arg has credibility b/c she works in hospital and knows that residents would be operating; but problem is that pl‘s arg of dr‘s promise is impossible b/c dr. would never agree to having 2 ppl do surgery b/c 3 ppl are req‘d --jury agreed w/ def b/c of impossibility of dr‘s promise acc to pl. --―ghost surgery‖ – regardless of K claim, if there was negl on resident‘s part, can argue negligent supervision that dr. didn‘t carefully supervise resident so surgeon is responsible anyway – pl. will have to prove that resident was negl. to cut bile duct even w/ K claim??

***Hand v. Tavera: Hand came in w/ headache; ER dr. wanted to admit Hand so consulted ins.dr. Tavera (gatekeeper dr.) who said send him home w/ medicine --Dr. Tavera‘s defense: there‘s no dr.-patient relationship so pl. can‘t sue me --K is b/w Dr. and HMO, k says there are no 3rd party beneficiaries acc to Tavera so he has no duty to patient patient is not 3rd party beneficiary but direct party in dr.-patient rel.; K creates direct relationship b/w dr. and patient b/c K says for dr. to accept any patient under plan and treat him equally as non-plan patients??????? HMO ↔Dr. ↕ Pl. --how do you create dr.-patient relationship b/w patient and 2nd dr who is consulted by treating dr.? diff to do…rel arises only if patient pays 2nd dr. Sullivan v. O’Connor: dr. promised to do good nose job but messed up nose. Pl. sued for breach of warranty/K. court said that it‘s ok for dr‘s to make optimistic statements to patients for therapeutic value = placebo effect. **But just b/c dr‘s might make such statements, doesn‘t mean that they should get away w/ making promises of cures as perceived by patient!! Ct didn‘t ascertain whether dr. was reasonable; just said that reasonable dr‘s don‘t promise certain results --courts typically differentiate b/w therapeutic assurances and express warranties of a cureproblematic!! Even therapeutic assurance could imply promise of cure Tunkl v. Univ of CA: exculpatory clauses that release hospitals from liability for negligence are invalid! PERIOD. = absolute K of adhesion so invalid; you‘re forced to agree b/c you‘re in emergency, sick so don‘t have bargaining power. no one can be free of liab if they provide essential services to public. --if patient isn‘t paying for care, they can‘t sue—absolutely bad arg of hospital Shorter v. Drury: Jehovah‘s Witness had dead fetus removed through D and C procedure (removal w/ sharp hoop) but could‘ve used 2 other ways --2 options – either 1) dr. doesn‘t do transfusion, patient dies and he gets sued for wrongful death OR 2) he does transfusion anyway and get sued for battery and patient has lived; harder for pl. to sue dr. for letting him survive before the jury  ct said release applies to all bleeding?? --pl. argued that release freed dr. from all negligence in causing excess blood loss and this violates public policy  What would you argue as head of Jehovah‘s Witness? Argue for defendant so that dr‘s will agree to treat Jehovah‘s Witnesses and respect their wishes w/out liability --if release is thrown out, dr‘s won‘t treat J‘s W Confidentiality Humphers: pl. had her daughter secretly adopted. Daughter finds out identity of mother thru dr. who lied – made up medical reason for daughter to find out who mother was.

--Dr. liable for wrongful disclosure of confidential information, not for breach of privacy b/c dr. didn‘t actively invade privacy b/c he already knew, not prying + if someone besides dr. revealed identity, that would not be invasion of privacy dr’s have duty of confidentiality w/ patient Doe v. Medlantic Health Care – pl‘s co-worker found out by working at hospital that pl. was HIV positive and told everyone. Hospital argued that co-worker didn‘t find out thru us. Pl. could sue facility for *lack of policing* medical records – only way to sue hospital. Why wouldn‘t respondeat superior work? Can‘t sue co-worker‘s employer b/c co-worker was not acting w/in scope of her employment hospitals have duty to keep medical records confidential **Duty to Protect 3rd Parties 1) duty to patient is certain, but what about to 3rd parties outside of dr.-patient rel? cases where dr. gave bad genetic advice – dr. definitely has duty to parents b/c they have sought advice from him but cts don‘t find/address duty to child b/c don‘t want to say that child was better off not being born cases where you hand out samples to patients and fail to warn to not drive and take drug – do you owe duty to person who patient crashes into on road? Yes contagious disease cases – does dr. owe duty to patient‘s family to warn them of patient‘s disease? Tarasoff – pl. killed by mentally ill patient who told dr. he was murderous old drivers are big issue for dr‘s – does dr. have duty to keep him off road? all these cases are very fact-specific; general rules just address foreseeability & negl. Informed Consent --based on idea that we are all autonomous --pure battery doctrine – battery arises from nonconsensual contact --notion that dr. should inform patients of all risks and alternatives and let patient choose – big change for dr.‘s --all jurisdictions have abandoned battery theory behind informed consent; battery very easy to show – was there contact? Was it unconsented to? No expert necessary  **informed consent has replaced battery as a theory when there is SOME consent that has not been fully informed --but even this could be battery if consent is not full but that‘s just not the law no consent at all = battery; some consent = lack of informed consent, not battery ****Cantebury v. Spence: revolutionary case! Origin of informed consent READ CASE --pl. had severe back pain, dr. recommended surgery but did not disclose risk of paralysis --but pl. after surgery fell out of bed basis of informed consent lawsuits are NOT that operation was negligent but that patient was not fully informed about operation [--*if injury that occurs is not a risk of the procedure, and so there‘s no discussion of that, and that risk occurs, you assume malpractice/negligence on part of dr.] dr. stuck! Consent requires that patient be fully informed so that patient can then fully decide whether to go ahead w/ operation

 Std. is negligence std. = reasonableness under the circum (w/ batt, either there‘s consent or not; not abt reas)  X can‘t use reasonable dr. in circum/ or medical customs std.  b/c there‘s no std. for informed consent to begin w/ so ct rejected this; dr‘s don‘t inform patients (--but today dr‘s are reasonable in what they disclose)  √ or what a reasonable patient needs to know – dr. must deal with patients like Jehovah‘s witnesses to inform abt bleeding if they know patient is unusual  How does pl. prove what a dr. needs to disclose: dr. must disclose all *Material* risks and alternatives estab thru expert evid Material risk = risk that would cause Reasonable Patient to decline procedure Elements of tort all here: duty from dr.-patient rel, content of disclosure (material risks) = std. of care, and causation from disclosure of material risk that would change mind of pl.  std. to evaluate decision-making process of patient = would a Reasonable Patient have decided a certain way? People who need informed consent the most are dissidents – ppl who disagree w/ dr. --so dr. should not be worried that patients will make wrong choice if I inform them b/c of risk of dissident patient – not good reason --dr‘s worried about loss of placebo effect b/c of informed consent --**Informed consent cases are impossible to win b/c hard to show that patient would‘ve decided otherwise; most patients choose to go w/ what dr. recommends anyway --so why have it? For philosophical reasons – ppl are autonomous humans --let‘s say dr. failed to disclose a risk b/c risk is not material- too small a risk as matter of law to be imp to reas patient and risk still occurred in non-negl. operation – dr. not liable Johnson v. Koremoor: --dr. failed to inform pl. about his lack of experience in doing surgery --and he failed to tell pl. about better Mayo clinic nearby – tertiary facility experience level of dr. matters for fully informed consent and experience level of hospital  had she known about experience of dr. she wouldn‘t have chosen him --plus, he erroneously reported risk of surgery by experienced dr., which he wasn‘t  so, informed consent includes disclosure of experience of dr. --this case is close to fraudulent misrepresentation by dr. and can argue battery b/c there‘s lack of consent due to fraud --risks are so big that reas. person wouldn‘t have chosen surgery to begin w/! --duty to informed consent violated + **duty to refer to another dr. rather than doing surgery yourself; duty to recognize your own limitations --duty to refer is very interesting – crops up w/ chiropractors having to refer to dr‘s, duty to refer to specialists  would reasonable dr. have recognized own limitations and referred to another dr.? if yes, then duty violated so to see if you have to inform abt your experience, depends on material risk, case-bycase basis – here, 10% risk of experienced dr. v. 30% risk of inexperienced – big diff!

Disclosure of Mortality Stats Arato v. Avedon: pl. went thru chemotherapy but wasn‘t informed that he was going to die – death virtually certain w/ his pancreatic cancer – so if he knew abt this, he wouldn‘t have gone thru excruciating procedures and could have wrapped up his estate instead and avoid tax/estate expenses --dr. might think that by telling patient you won‘t be cured and ?, patient will imply from that that he will die --dr‘s defense: he wanted to leave patient optimistic and sustain his hope for cure rather than killing his hope by telling him he will die  bottomline: can still be optimistic but must reveal bottomline of impending death --dr‘s here were waiting for patient to ask, ―when will I die‖ – but he never asked – --**there is real effect on patient knowing they will die – profound human issue --But, patient might realistically decline treatment in last days to live them out in peace --some patients choose not to know; so they‘re entitled to that but if they do want to know, they‘re entitled to that too clarify if you want to know w/ dr. before you get sick --held, dr‘s not bound to reveal this info b/c it‘s inherently unreliable & cuts off mood to explore other treatments held, this lawsuit is like economic loss suit in terms of dam. For lack of estate planning, and not recognized as part of dr-patient relationship and informed consent --if dr. wants to, he can tell relative, not patient --is patient entitled to stats? If patient really wants stats, they can find out online today Truman v. Thomas --patient didn‘t want pap smear and then later got cancer and died at 31 --pl wants to tell jury that as a matter of law, dr. is liable who fails to perform a pap smear problematic; dr. can‘t be forced to do test on patient if she refuses --pl. also wanted informed consent to be extended to having dr. explain risks of not testing --dr‘s 3 args against this: all BAD args 1) patient has burden of inquiry – patient should question dr. about test if they refuse test but how would they know if they don‘t know how imp test is --very paternalistic b/c either you do what dr. says or question them yourself if you say no 2) danger is too removed – if likelihood of cancer is so remote, then why did he recommend pap test in 1st place? 3) to take test is commonly known – but then why did patient refuse test? B/c she didn‘t know abt importance of test!! outcome??  Self-Referral o Drs referring patients to another facility that they own. o Is there a duty to disclose this financial interest in patient‘s treatment? o Some states forbid physician ownership of testing sites. o Where a test if ―optional‖ should dr refer patient for test? Who decides?

Ex: genetic testing  What about a patient getting a test for a disease, such as bipolar, cystic fibrous?  Should patient be able to get this? o Shouldn‘t it be the patient‘s decision?  Asked if they want to know, etc, before dr offers the test.  Idea that patient will be freaked out – not really an appropriate reason for not giving patient the option  BUT, some patients might not want to know for employment/life insurance purposes/health insurance purposes  Physician Conflicts of Interest o Moore v. Regents of the University of California  Patient has hairy-cell leukemia. Has spleen removed as part of treatment. Patient is fine with this operation.  After removal of spleen, dr takes cells and sets up cell-line  Dr makes money off of cell-line, and patient is pissed b/c he doesn‘t get to profit off of his own body.  Drs kept having ―follow-up‖ visits ONLY with them. Tells him it‘s for his own best interest to have this tests/removal of fluids. Tells him he can‘t have it done in Seattle, even tho he could have.  Needed him in actuality for their cell-line o He pays his own airfare.  Court:  Dr‘s actions were wrong  Patient‘s informed consent never obtained for add‘l tests o If you were patient, and you knew about the real reason behind tests, what would you do?  Might say no – why go to CA to benefit dr?  Could also say ―yes, but I want some of the money.‖ - they probably would‘ve paid him  Has right to say yes or no, or to negotiate. o Might be duty to disclose risk itself – in that it‘s a new procedure o HMOs – trying to cut back on medical care  Don‘t want to cut back on nec medical care, just unnec med. care.  But all techniques seem to not be able to distinguish b/w the two  Need to give dr financial incentive NOT to provide medical care when it‘s unnecessary  HMOs tend to limit the freedom of dr‘s choice o Capitation fee – pool of money from referrals – if any still left, gets split among group of drs.


o Does dr have to provide information to patient about financial incentive from HMO not to provide care?  HMO says they cannot  Some courts – 1A violation, others – first duty is to patients, not HMO.  ***Causation for Lack of Informed Consent Claim o **Risk that you were uninformed of has to materialize o **Must show causal rel b/w lack of knowl of risk and dec to have surgery  That you would‘ve refused procedure if you knew about risk  This is where most informed consent cases die o **Standard: Would a reasonable patient in this patient‘s decision have made a different choice had they known of the risk?  Material risks are those that might affect patient‘s decision  If proced is optional, even a small risk can reverse patient‘s dec.  Damages for Informed Consent o Benefits Doctrine: Gracia v. Meiselman  Pl having plastic surgery, but jaw was in pain so reconstructed it  Not told of risk of perm numbness – lost feeling in spot  Pl‘s claim: he wouldn‘t have had procedure if he had known of risk  How do you determine damages here?  Should just be for the numbness o Problem: is that he was so worse off before o Benefits doctrine: Saying you‘re still better off now than you would‘ve been without the procedure.  Even with the numbness - WRONG  What‘s wrong with this? o Means the risk wasn‘t material in the first place b/c reas. person wouldn‘t have refused surgery knowing of the risk. o Undercuts material risk idea  Court says here there were no alternatives – but does this answer the problem that we‘re undercutting material risks  Won‘t give him much, if any, damages b/c he‘s better off than before o Punitive Damages: Tisdale v. Pruitt, Jr. M.D.:  Pl has miscarriage occurring – sees her general dr. o He recommends a D&C.  Dilation and curettage – open cervix and run knife around walls of uterus to get out whatever is in there. Under general anesthesia b/c it‘s very painful.

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She needs a 2nd opinion b/c of insurance co. Goes to this dr, tells them she wants a 2nd opinion.  written on chart. o Dr examines her and does D&C, w/out anesthesia, w/out her consent  battery!  She needed another D&C afterwards  Pl says she wouldn‘t have had it if she had been asked. o She barely knew this dr; she would‘ve rather had hers do it. Wanted anesthesia .  Def – I misread her vibes. Court asked if there consent could be inferred from silence …  But this isn‘t that case!! Court also asked if there was enough evidence presented to uphold informed consent case Court is dodging an issue – doesn‘t say it‘s ―not lack of informed consent, but just lack of consent‖ – this is actually a battery case!  Punitive damages – usually none in informed consent, but since it‘s really a battery case (but statute of lim was over) o Court doesn‘t seem to care what he‘s responsible for as long as he‘s responsible.


 2 Exceptions to Duty to Disclose/Get Informed Consent (Canterbury v. Spence)  (1) An emergency situation  Patient is unable to give thought/consent b/c unconscious  An unconscious person is assumed to consent to anything a reasonable person would consent to if they were conscious  (2) Therapeutic  When informing patient would endanger his well-being.  If information would scare patient so much that the patient would reject medical treatment  problem with this  rejects idea of informed consent. o Who needs informed consent the most  the ones that would disagree with dr. o Cts have ltd therapeutic exception VERY narrowly.  If patient is so freaked out that dr feels they cannot handle the info, should (acc to cts) talk to relative/next of kin to discuss issues o Some statutes replace reas. patient std w/ reas. dr std for what has to be disclosed for informed consent.  Informed consent forms  often have no basis for attacking it even though what‘s in it can be quantified. Don‘t know if you‘ve heard all the risks, etc.  Liability of Health Care Institutions: Must determine relationship between hospital & dr: Respondeat superior = Strict liability doctrine

 If employee of hospital was negl and doctrine of respondeat superior is applicable, then the hospital is liable (no need for hospital to be negligent) Issue – does respondeat superior apply?  Captain of the Ship doctrine (Vicarious liability doctrine) Hospitals not negligent, but dr‘s are Applies to surgery. Surgeon viewed as in charge of and responsible for e/t in operating room. An employee of hospital (nurse) is negl (instrument left in patient), but hospital won‘t be resp b/c the dr = captain of the ship. Borrowed Servant: (surgeon, not hosp is liable) Surgeon is borrowing employee of hospital, and for purposes of the surgery, the employee becomes adjunct of surgeon - NOT hosp employee  Independent Contractor Dr is not an agent of hospital, makes all his own decisions Exceptions to these doctrines begin to arise b/c these ideas are stupid. Schlotfeldt v. Charter Hospital of Las Vegas Pl went into hospital b/c she felt suicidal/alcoholism, admitted voluntarily --Then she wants to leave, but they‘re afraid she‘s still suicidal --If they let her leave, could be sued for letting her leave, so they keep her in the hospital She sues for false imprisonment = keeping someone agnst their will = intentional tort. Under respondeat superior, employer is generally NOT responsible for intentional torts of employees EXCEPT that detainment = part of the employee‘s job (how treatment works) Issue: whether hospital is vicariously liable (respondeat superior – strict liability) for the acts of the dr who kept her in the hospital? Cts found that dr is agent of hospital, and hosp is resp for actions of its agents Factual basis for finding that dr = agent: hospital asked him to treat the patient! As matter of law, This is suff to make dr agent of hosp & invoke vicarious liab What did trial court do wrong? It‘s a fact question for jury as to whether dr was acting as agent of hospital. If so, then there‘s vicarious liability. Berel v. HCA Health Services of Texas, Inc. READ Dr recommends entire family get admitted for treatment of emotional disturbances Agent was negl in admitting them, so hosp liable under respondeat superior/VC Separate claim – that hospital failed to properly supervise them. Negligence on part of hospital. (primary liability) Trial ct – said he was independent contractor and hospital didn‘t have control over him. ***What determines agency? Control Test– if hosp controls dr‘s acts, hosp is vicariously liable for dr‘s negl. What kind of drs are these? Anesthesiologist, Radiologist ASK: **Can hospital control who the dr sees as a patient? = key to test Sword v. NKC Hospitals Ostensible Agency Hospital holds itself out as offering services to the patient

**Looks like an agency to the patient What would make it look like an agency? Go to hospital and are assigned a doctor (not picking dr – looking to dr)  Hospital Advertising! --Ads that say our drs are the best Woman goes to hospital to deliver – has anesthesiologist problems. Anesthesiologists are almost always found to be hospital employees (b/c they are) Still in realm of respondeat superior/vicarious liability – but are creeping closer to lawsuits against the hospital (b/c hospital is treating them, maybe there should be a standard of care for hospital. Sue hospital and not just dr). Vicarious Liability  Hospitals owe a non-delegable duty to give emergency care to unconscious patients --hospitals commonly hire others to run their ER‘s to limit their costs --hospital lost on non-delegable duty grounds: hospital has duty to provide non-negligent care so can‘t be held non-negligent just b/c it delegates its duty away --**Inherent Function Test – hospitals are liable when radiologist, for ex, is negl in reading x-ray or pharmacist messes up; if function is necessary for hospital to be a hospital, then hospital cannot contract away its liability obligations --this test makes using non-delegable duty doctrine for hospital unnecessary Hospital is liable for negl care no matter what; if employees or indep contractors are negl; hospital is still vicariously liable here; liable for another‘s negl = like strict liability --CLARIFY Hospital Direct Liability --no longer strict liability std here like in vicarious liab Washington v. Wash Hospital --nurse inserted tube into esophagus, not trachea, blocking breathing passage, vegetating patient!! very serious and very negligent mistake! here, arg is that hospital is negl for its own actions for not having a CO2 monitor. --this device is key life-saving device!! suit is agnst hospital for breach of hospital std of care – duty of reas patient care evid that established hospital liability  **hospital‘s own chairman requested this equipment in order to meet the national std of care – hospital itself acknowledging violation of std of care w/out this how do you argue agnst this evid? How do you know chairman meant that in letter? Maybe he was just saying that in order to get it… case doesn‘t address how you divide responsibility if there was CO2 monitor – both hospital and dr. liable so under joint and several liability let them duke out damages **std is reasonable hospital in the circumstances so small, poor hospital not expected to have expensive equip missed bunch of stuff on causation,etc. – nurse anesthetists?

Negligence Per Se? Johnson v. Hillcrest --test results of patient never got in chart that he had heart attack; but it was on computer, but dr. released him anyway --claim agnst hospital: results should‘ve been on chart causing patient to be in hospital and preventing death --hospital‘s arg: no causation; hospital did n/t to cause patient to die --putting results in computer meets std. of care --dr. didn‘t check computer and apparently never even checked any tests --**std. of care = OK statute created duty on hospitals to document stuff on charts; but ct said we don‘t care about this b/c **everybody knows you should put stuff in chart – matter of common knowledge – don‘t even need expert testimony on this --do need expert testimony on causation element b/c breach of duty to record in chart was shown but not that breach caused death --rare to see negligence per se applied to hospitals Duties to Treat Patients Muse v. Charter Hosp --kid‘s insurance ran out so hospital refused treatment even though parents offered to pay  claim – hospital breached duty of care by discharging patients when their insurance ran out and overriding medical judgment of dr.‘s who advised to keep patient --contradicts prior case where hospital not held liable for dr signing release?? --policy of hospital is to discharge when ins runs out – forcing dr. to discharge patient is suff to get to jury on negl issue --what is wrong w/ pl‘s case? Kid didn‘t kill himself until 2 whole weeks after his discharge so problematic for causation; was discharge causally linked to suicide? There was no need to keep him in hospital for that 2 week span [case not abt this issue] so does grocery store have to give free groceries to hungry ppl running out of cash or does LL have to give more time to tenant w/out $? Strict Liability  NOT applied to hospitals mostly --hospital doesn‘t sell product; sells service, so S/L doesn‘t apply – arg of hosp‘s --dentists often get sued in s/l when needle breaks in patient‘s gum --dr‘s confront problem that jury is disgusted by fact here – ct must still avoid s/l for dr‘s b/c it‘s service, not product so sec. 402(a) doesn‘t apply Hospital Direct Liability (not vicarious, not respondeat superior) Darling: pioneering case – started this doctrine READ CASE --18 yr old broke leg playing football, dr. put tight cast, cutting off circulation; eventually had to cut off leg  terrible case --Dr. was an idiot/clearly negle…but ct didn‘t focus on him b/c he settled w/ pl. --specific mistakes of hospital: failed to make sure nurses ?, didn‘t supervise staff

--Why is this direct liab case? This is Not a respondeat superior case – not that hosp just responsible for negl of nurses, but hosp negligent itself --2 main Negligence claims: 1) understaffed and nurses not trained to recognize gangrene 2) **odd: sounds like failure to supervise dr.; normally hospitals don‘t supervise dr‘s who repair broken leg  --Issue overlooked by ct: duty issue – 1st element of negl claim – does hosp have duty to patients such that they can sue? --so hosp is directly liable…why? 1st case to establish that hosp has duty to supervise and evaluate care by dr‘s in hosp Thompson --pl. was injured in car accident; couldn‘t figure out illness until finally discovered neurological condition – hematoma --mistake was made early on – pl. was taking anticoagulant, making bleeding more likely and dr‘s overlooked this! --pl suing hospital for practical reason – too many dr‘s involved to sue so just sue one entity – hospital for generally inadequate treatment on part of dr‘s acting for hosp but NOT respondeat superior still Hospital has 4 duties: 1) reas hospital std; equipment, facilities 2) duty to select and retain only *competent physicians 3) *duty to oversee practice of physicians – hosp needs to have std. of review 4) duty to have policies that ensure quality care for patients….review cases, make sure dr‘s are competent to *find incompetence, search it out  **to win, Pl must prove that hospital had actual or constructive knowledge of incompetence – high burden to prove; must prove that hosp was negligent; so 1st time dr. is negligent, there‘s no way that hosp could know about it; so pl. must find that dr. was negl before and hosp failed to find that out --duty to supervise staff on p. 412-13 is VERY extensive --duty to restrict clinical privileges of staff if they do certain things Duty to Protect 3rd Parties Douglass v. Salem Comm Hosp --dr. was a child molester who went from hospital to hospital --hosp did reference check on dr. but never got response from prior hospital  this should‘ve been red flag! --no one ever told future employers about his history b/c they want him to get another job and leave quietly rather than fire him and have this come but this backfired! --dr ended up having relationship w/ patient 2 sources of duty: 1) special relationship b/w hosp and pl‘s such that hosp had duty, when asked, to tell truth abt dr 2) if you start to render a service voluntarily, you have to follow thru with it non-negligently

--here, woman called up to get reference on dr. to send her kids w/ him on camping trip; hospital said dr. was fine!! A Lie! – could‘ve said ―no comment‖ as red flag to her --but, dr has not been at hospital for 3 years so ct is careful in implicating hosp --under risk averse test: hosp can either cover up and be sued later by molested boys or fire dr. now and risk present suit; which is much better Pedrozza v. Bryant p. 420 --holding is DEAD WRONG!!!! --patient gets hurt b/c of dr‘s treatment --huge problem: patient was pregnant, but dr failed to diagnose deadly condition; the whole reason that patient went to dr. was b/c he had staff privileges at hospital!!! --so ct wrong to say that b/c patient was not yet admitted into hosp, hosp was not liable --yes, you must consider causational links and foreseeability and where to break off proximate causation, but here causation is close – hosp should be liable Copithorne p. 421 --dr. raped patient, but here, hosp held liable b/c it was foreseeable that patient would pick dr. b/c dr. was on staff at hospital there must be pattern and practice of negligence on dr. for hosp to be held liable Reforming the Tort System --health crisis in not b/c of more negl dr‘s or capricious juries but b/c of insurance problems!! --medical malpractice (insurance) crisis is linked to times of recession – bad economy – has little to do w/ actual malpractice verdicts which are very low percentage --problem w/ medical ins: pool of insured is very small so that if you‘re injured in ‘75 and problem arises in 96, ins co of which year covers you if ins co changed? Ch. 7: Access to Health Care: Obligation to Provide Care --huge problem!!; scandalous problem in our society which is superficially egalitarian --concern abt poor, minorities, working ppl w/ no benefits accessing health care Dr‘s obligation to take ppl as patients Ricks v. Budge --pl. had badly infected hand; but his dr. denied him surgery b/c of no payments --Issue = was there dr-patient relationship? Yes, here **dr. should‘ve given suff notice before withdrawing treatment so that patient can find other care --what if patient can‘t find another dr.? cts don‘t answer that Childs v. Weis --dr. said he told nurse to call other dr. to see what to do but nurse tells pl. she must go to Garland but pl. didn‘t make it; she was pregnant

--can sue dr, nurse under respondeat superior; seems to be nurse‘s fault --Issue = no contract/ dr.-patient relationship b/w dr. on other end of phone and patient -- if 2nd dr. did say come to garland, he could be sued b/c that‘s a treatment dec. In addition to refusal to treat, there‘s tort of abandonment where dr. drops off patine EMTALA: --deals w/ patient dumping at hospitals --hospital gets stuck paying for dumped patient so they go broke --EMTALA allows for private rts of action agnst a hospital if they failed to provide nondisc evaluation and fail to stabilize and transfer them elsewhere to public hosp Barber v. Hosp --**dr. didn‘t know that patient in falling incurred a massive brain injury b/c he failed to check her out  so dr. is negl. and patient was transferred w/out being diagnosed w/ that and being stabilized --***under EMTALA, you can‘t sue for dr. negligence; you can sue for failure to get std. screening and stabilization --core piece of EMTALA – to sue for screening, must show that your screening was lower quality than screening of insured or richer person? --Issue: did pl. get disparate screening compared to a paying patient? NO so can‘t sue under EMTALA; could sue for just dr. negl, but statute of lim had run? EMTALA meant to address specifically discriminatory treatment of patients, not dr. negl. in general GET FACTORS OF EMTALA – on exam??? ADA: can‘t discriminate against ppl w/ disability – includes HIV To make a prima facie case under ADA, 3 factors to show: 1) pl. had disability 2) def‘s discriminated agnst pl 3) discrimination was based on the disability Bragdon v. Abbott There must be a REAL risk of HIV transmission to deny treatment so can‘t just deny patient if you simply think there is a risk – how do you determine this? Managed Care --goal: SAVE $; so HMO‘s formed to curb dr‘s giving too much care and running up bill --for member of HMO, a set/cap amt is paid for your health care in one given year; if you don‘t use up all that $ for year, that $ goes to dr‘s or to HMO, or if cost of care exceeds that capitation fee for the year, then HMO must cover excess so HMO is very interested in keeping treatment less  try to prevent all treatment, whether nec. or unnec. Vicarious Liability issues w/ Managed Care: can HMO be liable for choosing bad dr‘s in network?

managed care liability has been severely curtailed by ERISA **for HMO, the less care the better b/c there‘s set fee for patient and the less care he gets, the more profit made: roadblocks agnst patient seeking care:  require patients to get referral first to discourage them dr. saying no to begin with?  HMO‘s save more $ by letting dr‘s give care rather than making them appeal ***Liability for HMO‘s thru Vicarious Liability: ???????? SEE Petrovich case Elements of V/L: --must 1st est. relationship b/w patient and HMO? And negligence by dr. --there‘s also direct liability piece?? Dr. not ordering test. But don‘t need direct liab. **V/L piece that works in context of HMO: --looks like dr. works for HMO? Tests for V/L: apparent/ostensible authority question is question of fact; not a matter of law --evinced thru HMO pamphlet that gives you list of dr‘s in network  control test: dr‘s patients are controlled by HMO so HMO responsible? VERY BAD arg of HMO: if HMO is held liable, then it won‘t be able to achieve its mission of cutting costs of health care  slippery slope – anybody can be denied care just to cut cost; why should HMO be specially treated b/c of its mission & get away w/ it Direct Inst‘l liab/Corporate liability (*top of p. 512) Shannon v. McNulty: --pl. was going thru pre-term labor; showed symptoms of pain; dr. and nurses ignored her so ended up going thru pre-term labor (was preventable), baby born premature and died 2 ways to sue HMO: 1) direct liability: failure to supervise staff (dr‘s and nurses) adequately 2) vicarious liability: nurses were liable so HMO is indirectly liable for them --dr‘s negl. falls under here? Dr. negl so employer, HMO, negl negligently selecting dr‘s – HMO‘s are resp. for providing competent medical care failure to supervise; failure to make sure staff stays competent Physician Incentive Systems: pressure on dr‘s to save $ by limiting treatment Bush v. Dake --pl. had uterine cancer; she needed 2nd referral to specialist but didn‘t get it; by the time her cancer was diagnosed, it was too late  she should‘ve gotten pap smear from the start!  but under HMO system here, only primary care dr‘s can do pap smear but they don‘t get paid to do it; they‘re paying for it themselves  pl‘s 2 args: 1) whole HMO incentive system is negligent; violates public policy – ct can‘t decide this b/c public pol is up to legis and legis has approved HMOs 2) system in place caused dr. to avoid giving pap smear in this case – this arg as applied to pl. upeld, but system not overturned on its face --Utilization Review – decision by MCO to deny treatment; = practice of medicine --HMO is a corp  corp can‘t practice medicine  HMO don‘t practice medicine so can‘t be sued = arg of HMO‘s that we‘re no liable but they DO make med dec.

--Retrospective Review – treatment already given but reviewed --Prospective Review - ? ERISA & Preemption: Not on EXAM right?? --can‘t sue for negl care; can only sue for value of denied benefits like drugs/hosp stay [--preemption and HMO‘s – some cases say that ERISA restricts all lawsuits against HMO‘s, some don‘t; on exam, don‘t assume that HMO suits are preempted] Doe v. Group Hosp: treatment cost 100K, pl would die w/out it; HMO said bone marrow transplant not covered by K – in amendment to K; ct upheld amendment but then said ins co must still pay for chemotherapy if not the bone marrow transplant piece  this is not what ins co meant but ins K‘s are construed agnst ins co w/ ambiguities Bioethics – new std. of ct for life: viability of fetus; if fetus is not viable, it can‘t sue/no rights, but mother can still sue for loss of child; unborn fetus can also have estate sue for it --in these cases, pl. is fetus and def is criminal or torfeasor Contraception: Griswold v. CT  banning contraception is unconst‘l; extended to married couples in Eisenstat Abortion: Roe v. Wade --there‘s const‘l right to privacy (vague as to dr‘s right or woman‘s); can‘t ban abortion --absolute rt to abort in 1st trimester, regulable in 2nd, and forbiddable in 3rd --rt of privacy has not been expanded to other areas (ct ruled that patients can‘t say they have rt to leatril, drug for cancer) Cruzan: right to die (but assumed by court) Lawrence v. TX: privacy rt expanded to gays. J. Kennedy‘s point on originalism – can‘t be purely originalist in const. b/c const. doesn‘t cover e/t Casey: can‘t impose undue burden on abortion Sterilization --cases almost always involve sterilizing ppl who are mentally retarded **Hayes: Std. for deciding when to sterilize = 1) evaluate competence of indiv – they must be permanently unable to make dec. 2) there must be clear and convincing need for contraception 3) there must be no alternatives to sterilization a. but then norplan came up as alternative (patch under skin?)  ―disinterested‖ = objective!! Failed Reproductive Control 3 kinds of lawsuits: 1) √ wrongful birth – child born w/ profoundly serious congenital prob; pl = parent 2) X wrongful life – same as above except that pl. = child – suit rarely allowed

these 2 are always suits agnst dr for bad genetic counseling __________________ 3) wrongful conception – failure to sterilize; pl. is always parent, not child Smith v. Coke: pl.‘s test showed she was exposed to rubella; she was pregnant so her child was born blind, deaf, mentally retarded, heart problems  sued dr. for wrongful birth that dr. failed to advise of birth defects and had she known, she would have terminated pregnancy; suing for emotional distress & $ for care for child  child sued for wrongful life – has to prove that child would have been better off never being born – court throws out this suit (most cts don‘t allow wrongful life action) – how can court say that child‘s life w/ defects less valuable than no life at all? --this is not hard-hearted to child b/c parent will still recover costs of child for life ct went thru all elements of tort: --duty – yes, dr –patient rel there --negligence – dr. failed to give good advice --causation – child wouldn‘t have had defects if not for bad advice --damages – very expensive to take care of child ct splits the baby: didn‘t award emotional distress but did give economic damages --mother can put child up for adoption to minimized damages – but cts will NEVER say there is duty to have child adopted w/ wrongful birth Wrongful conception lawsuits involve healthy baby but it happens when parents have 10 kids and don‘t want anymore so they get sterilized but sterilization fails b/c there‘s a baby! pl = parents asking for cost of raising a child --cts find all elements here too: duty to sterilize, negl, causation, damages --some cts just give cost of pregnancy pain and suff, not cost of child --some cts deny damages on theory that child will feel bad that parents sued over life of child – didn‘t want child but it‘s better that child get damages to raise it --cts will NEVER say that mother should abort if she doesn‘t want child in wrongful conception action which would be cheapest option Assisted Reproduction --Infertility Problems – 10% of couples are infertile --Artificial Insemination – using husband‘s sperm is not a problem at all –AIH --but w/ AID, man‘s sperm is donor‘s, not husband‘s – question is who is father? --most cts say donor is not parent; child is child of marriage --mostly, child cannot get child support from donor --problems w/ donor insemination are rare --In vitro fertilization – more problematic --egg is fertilized outside the womb; clinic will fertilize 4 eggs and will use the one that takes and freeze the rest? --up to 5 ppl involved : couple, egg donor, sperm donor, surrogate mother Davis v. Davis: parents froze embryos to get pregnant; then get divorced  Issue = what to do w/ frozen embryos? wife wanted to donate embryos and husbanded wanted to leave them unused

App. Ct – sided w/ husband b/c he had const‘l right to not be parent and sent question back to Trial Ct. who split embryos 50-50 to give joint control this is really **victory for father b/c by taking away half of embryos from wife, nothing will happen; they will just stay frozen ?????  TN SCt: weighed interests; father‘s interest to not have a child outweighs mother‘s interest; b/c burden on father of being parent is greater than burden on mother of not being able to donate embryos – mother doesn‘t want to use embryos herself, so her interest is less than father‘s embryos are not persons or prop; if not prop, then ur more ltd in what you can do w/ it rt to procreate and rt not to procreate are equal rts but father actually wins held, 1st look to wishes of progenitors, if disagreement, go by contract w/ clinic, if none, go by weighing their interests; parent who doesn‘t want to procreate prevails if parent who wants to has other ways of procreating AMA – said gamete providers should have equal say – but this always lets party who opposes the use of embryos wins Surrogacy --2 ways: surrogate is also genetic mother; surrogate is just gestational mother **Baby M: surrogate is gestational and genetic mother here; she is artificially inseminated by father‘s semen. Surrogate then wants to be treated as mother of the baby even though before pregnancy she contracted her parental rights away. Court said surrogacy contract is invalid; void! Can‘t sell away child after throwing out contract, you‘re left w/ custody dispute std in custody dispute is what is best interest of child? Father gets custody and surrogate mother gets visitation rights; father‘s wife can‘t adopt child b/c of lack of consent of biological mother --focus of this ct is on child, some cts focus on impact on society but ct didn‘t make surrogacy arrangements illegal; just said that ct won‘t enforce K issues raised here: What can you sell? You can sell/give body parts that renew themselves like blood -surrogacy can boil down to poor ppl selling their kids to reach ppl Johnson v. Calvert: surrogate mother was only gestational mother, not genetic mother; she agreed to be paid $10K and have couple take out life ins on her their rel. went rocky; 2 ways to determine by statute who is mother 1) who gave birth to mother? – gestational OR 2) go by blood test – meant for paternity really but not restricted to father so the 2 ways (don‘t trump each other) don‘t help in determining who is mother Contracts validity question here is different b/c gestational mother is not biologically carrying the child so she‘s not selling her own child ct favors genetic mother (even though K doesn‘t explicitly say who is mother?) **ct uses intent of parties in K – who intended to be the mother? And what was whole reason for making child? Couple caused child to come into existence – genetic parents parents = couple who employed surrogate to deliver child

--dissent: don‘t use intent, but use best int. of child std. – dissent says gestational mother is real mother but she has no relation! Best int of child std. doesn‘t say who parent is Buzzanca: couple have unrelated embryo in surrogate mother; they split up and husband disclaims responsibility; wife wants child and wants child support from husb; trial court said there‘s no lawful parents; surrogate/gestational mother said she had no claim to child (right b/c she never had expectation to raise child) Trial Ct was INSANE – how could it say that child had no parents?? Meaning that no one had claim to baby; even though wife wanted baby, App Ct slapped trial ct for this – said that x-husband and x-wife are still parents of child b/c it‘s not different from any situation where parents divorce; parents stay parents intent to be parent = motherhood other case said gestational motherhood and genetic motherhood = motherhood --just like father who agreed to artificial insemination is father, same way husband here is father b/c consented to creation of this child Prato-Morrison v. Doe: couple unsuccessfully tried in vitro fertilization; they left behind 25 eggs and 25 fertilized eggs and then found out that embryos had not been destroyed and were given to other couples without their consent  twins born w/ their genes born in 1988 – chart said that bio. parents were possibly pl‘s  pl‘s wanted genetic testing and visitation rts  Doe‘s, parents who raised twins, argued that they had twins just by virtue of Mrs. Doe getting pregnant; no evid that Does used in vitro fertilization  Doe‘s said that pl‘s have burden of showing there‘s in vitro fertilization – ct said that pl‘s only evid was chart which was hearsay – not enough so no standing  pl‘s failed to meet threshold of evid to order genetic testing; can‘t let ppl going around demanding genetic testing of others --not worth it to disrupt lives of 14-yr old twins by introducing stranger parents cts protect donor privacy over interest of child wanting to know who his parents were for getting organ/health reasons problem faced by IVF clinic: what to do w/ all the leftover embryos? Fetal Maternal Decision-Making **In Re A.C.: pregnant woman w/ cancer decided to take palliative treatment – would give her comfort but not cure her in order to save baby  mother wants baby! before 28 weeks, she started to die, making emergency C-section necessary to save baby  hospital had to figure out if she would want to have C-section before 28 weeks hospital‘s choice would be to deliver baby b/c baby has better chance to survive than mother but hospital can‘t do C-section b/c don‘t have mother‘s consent yet so it sought court order to decide what to do defining fetus as viable gives the state an interest in protecting it (no state int in protecting non-viable fetus) **C-section will make mother die more quickly but will give fetus a chance must do balancing here; *don‘t know mother‘s wishes

Court orders C-section, then mother woke up! Regained consciousness  mother then said no to C-section; dr‘s concerned that mother, though awake, can‘t make informed decision and Judge said it‘s still unclear what mother wants and still orders C-section—then baby dies, then mother dies App. Ct reviewing case has advantage of being distanced from facts to set standards --app ct said trial judge got it wrong – improper for judge to do balancing of interests; should‘ve used ―substituted judgment‖ **app ct. made finding (even though that‘s up to trial ct) that she said NO to delivery Best int balancing of trial ct: chance of producing greatest good for greatest # --objective test ‖Substituted Judgment‖ test: What would this person have decided if she could have decided?  the right test acc to App Ct --subjective test need to figure out why mother would decide the way she would – is she saying no b/c she thinks she can make it to 28 weeks? That‘s unrealistic husband can‘t have a say here, b/c it‘s mother‘s choice to have c-section; not about baby‘s life but about medical procedure of c-section so that‘s up to mother Whether child born or not is very important --if child is baby and J‘s W that needs blood transfusion, then court will definitely order transfusion but sketchy when child is unborn/fetus --Woman had placenta previa – can cause baby and mother to die during delivery if placenta tears thru cervix causing bleeding --best option is to get C-section to save child but she said no either D.A. could get C-section order, or only if she came to hosp could she be forced to do C-section, or force her to get C-section different rulings --many times mother would escape and deliver baby vaginally anyway so drs were overreacting or just wrong so this became non-issue

Guardianship of J.D.S.  woman was denied her petition to be guardian of fetus of a mental woman w/ cerebral palsy, etc. – she had no relation to mother (put up to it by Jeb Bush; didn‘t have standing)  mental woman got raped in group home – but not mentally able to care for child she was on meds that could hurt fetus = conflict of interest b/w mother & fetus **ASK in Balancing Test: harm to baby w/ mom on drugs v. harm to her w/out drugs **need to ask what decision mother would make if she was capable of making decision on baby v. drugs for herself  under substituted judgment test ask: what would reasonable person decide, considering this mental situation? how can substitute judgment for her when she‘s never had judgmentmaking ability before?? must pretend under test that mother can decide? requires fictional/imaginative leap (that‘s why balancing test is preferred over substituted judgment test) **need to find out what competent ppl taking seizure meds would decide here central issue: woman wanting guardianship wanted court to say that fetus was a person to prevent abortion

court just said that fetus is not person, so you can‘t be guardian of fetus b/c not person held, fetus can‘t have guardian; if it was person, then everybody would jump at chance to be guardian of mother they didn‘t like to avoid abortion Human Genetics p. 186 3 Issues: 1) Privacy and Confidentiality of genetic info – prediction of future diseases, likelihood that you will have a disease could affect ins coverage if they find out 2) Discrimination based on Genetic Traits – ins co‘s raising premiums 3) Ownership of Genetic Information and Resultant Products – can ins co force you to do genetic testing so they can base ins on your diseases? --generally, statutes say that ins co‘s can‘t use genetic info or require testing or use results of any testing, but can use family background 1) **Safer v. Pack: pl inherited risk of certain type of cancer from her dad. Dad‘s dr. failed to warn her family that she was at risk of cancer her dad had FL SCt had said that dr. does have duty to warn patient of genetic risks, but that duty is discharged once you inform patient but this NJ SCt went further that dr. has to make sure that ppl at risk are informed, not just patient?  READ CASE FOR DETAILS ON HOLDING ct here said we will not address issue of conflict b/w patient not wanting to tell family and dr‘s duty to warn family members  evidentiary problem w/ holding: pl‘s mom said she was not warned by dr. but this was 25 yrs ago and it‘s all hearsay evid abt who said what to whom  What does duty to disclose involve?? Ownership of Genetic Info & Resultant Products 3) **Greenberg v.( Miami Hospital) --fatal disease in Jewish community; kids w/ it die at 10 --def. had patent on testing for this disease that restricted availability of testing and pl‘s had donated tissue and blood for experimentation so pl‘s mad --pl‘s claims that survived – unjust enrichment – def made $ and pl‘s didn‘t know def would (and conversion – but court said that once property is donated, it‘s not yours anymore – but when you donate it, you donate it under certain assumptions) thrown out) holding??????? --?‘s: diff b/w genetic testing v. looking at family tree by ins co‘s? ins co‘s can consider cond‘s you have (ask you drugs you‘re taking) but not cond‘s you will have Death and Dying Anencephalic Infants – have no brain at all; just brain stem; die soon after birth In Re TACP: mother decided to give birth to anen. Baby even though most ppl decide to terminate pregnancy. Why mother would have done this – to give meaning to baby‘s life by donating its organs to other babies to save their lives. No other rationale in doing so.

parents wanted hospital to declare baby dead before taking its organs so child not dead for purposes of organ harvesting dilemma – need to take organs while baby technically alive – while brain stem still functioning; but if you wait till brain totally dead, organs are less viable  baby didn‘t fall under either definition of death – b/c had cardiopulmonary function and had brain function so court said baby not dead so can‘t take organs b/c illegal to take essential organs from living person? AMA Council said it‘s ethical to take organs from anen babies In re Baby K: hospital didn‘t want to keep treating anen. Baby w/ respiratory machine --but mother wanted to continue treatment --normally, parents decide whether to give treatment to baby, not dr‘s --dr‘s problem w/ giving treatment – it‘s unethical b/c prolonging vegetative state of baby --for dr‘s, this is not treatment at all b/c no purpose for baby is served --baby‘s condition is so fundamentally intractable, nothing can be done to help it --who decides when to give/stop treatment? Who decides what treatment is? --ct said EMTALA requires hospital to give treatment regardless of whether it‘s Anencephalic; can‘t discriminate on this basis; hosp would revive any other baby --this ends up wasting resources though for child b/c child has n/t to gain --maj op. defined condition here as not breathing while dissent defined condition as anencephaly w/ not breathing as result  result of whether to revive depends on your definition; if cond = anen., you cannot ―treat‖ anen. Life and Death Decisions  law depends on your terminology – ―turning off respirator‖ – is respirator lifeprolonging? Or death-prolonging? Causing them to die or allowing them to die by turning off respirator? How you word it can determine your position 3 Ways to Decide: 1) autonomy – ppl should decide for themselves if they want to die --shows up in substituted judgment test (usually means end treatment) --subjective; from pov of patient – what patient wants 2) beneficence – what is best for each person should be accomplished --shows up in best interest test (usually means prolong treatment) --objective; balancing factors in particular case Right to Die: Cruzan Ct did NOT hold that ppl have right to refuse life-sustaining treatment ct said, we will ASSUME there is right to refuse life-sustaining treatment  issue: assuming there is above right to refuse nutrition and hydration, is that right unconstitutionally burdened by requiring by clear and convincing evidence that incompetent person would terminate treatment? NO, it‘s ok to use this c/c std. of evid  Rehnquist? - can‘t use substituted judgment to terminate treatment where there‘s no/very little evid to show what patient wanted

respirator was considered treatment and you had right to stop treatment now, food and water = hydration and nutrition – called treatment, acc to O‘Connor and you can stop this treatment too --[just b/c you accept death, doesn‘t make it suicide – Scalia wrong] Brennan: 4 state interests: 1) preserve life, 2) protect innocent 3rd parties (like kids of patient) 3) prevent suicide 4) maintain ethics of med profession **what‘s not included as state int is protecting individual autonomy --another issue not raised in Cruzan is Who Pays? If treatment continued, then would parents have to keep paying? Here, state agreed to pay costs Bouvia: young woman – totally paralyzed; wanted to die; was in continual pain but had full mental faculties  Ct said she has right to die  she wanted hospital to HELP her die; wants to be kept comfortable (palliative care) while she starves to death she went to college, was married, husband left; has nowhere to go; *no one wants her --parents didn‘t want her; society has failed her – made her want to die  extreme view of autonomy: is she competent? if so, she can decide to die; shouldn‘t even ask her to justify her decision to die; just respect her wishes  other view: keep talking to her about why she wants to die; by doing this, you‘re keeping her alive **court decided she could stop eating ** WHY? but she didn‘t stop eating --if somebody really wants to die, you enable them to make that decision and see what they do; she had no control over her life so giving her this decision gives her some control; something to live for --how does court say that for hospital to stop feeding her is not suicide b/c she‘s compet! Whose right to refuse treatment needs to be protected? --ppl who disagree w/ their dr‘s – mostly, dr‘s always want to continue treatment  if competence were the real issue, we would worry about it both ways – are you competent to consent to treatment & are you competent to refuse treatment?  4 countervailing state interests: preserve life, protect innocent 3rd parties, prevent suicide, maintain medical profession ethics have never trumped compet patient –p. 264  **Sykowitz case – profoundly retarded man had cancer – if he was not treated, would have painless death; if he was treated w/ chemo, would suffer, but would not understand it – trial court said that if competent ppl would choose treatment, then you can‘t discriminate against him just b/c he‘s retarded, and not treat him so treat him – on appeal, substituted judgment test used – pretend that he could be competent for 5 minutes and then see what he would decide **if you have right to decline treatment, then you must define nutrition/hydration/ respirator as treatment to be able to refuse it; otherwise, can‘t b/c deemed more essential, as food and water Georgetown: --J‘s W w/ ruptured ulcer, has baby; bleeding to death but she refused transfusion p. 269

--hospital staff was desperate to save her; went to judge but judge refused to get involved --then went to different judge to get order to transfuse --judge then actually went to patient and asked her; she said ―against my will‖; then she said it would not me responsibility if court forced her to have it – judge misconstrued this --judge signed order and she lived judge trivialized her religion – said no big deal  **little kids – even if J‘s W – are sure to get transfusion b/c not competent adults; but trickier w/ teenage minors, age 15; parents of children can decide on all matters except decision to refuse life-saving treatment Wons: J‘s W mother of 2 kids, bleeding; needed transfusion; she was transfused by trial court order; but app ct decided that she did have right to refuse treatment as matter of freedom of religion *3 kinds of patients: 1) competent patients – can make decision on their own so their decision governs; easy category; dr‘s must yield to them 2) patients who were competent but not anymore when dec made 3) patients who never have been comp. and never will be to decide 1st you must decide if they‘re competent or not 2nd, if they can speak in their conscious, not audibly?, must decide if they‘re competent p.276, 5 tests to determine competency: 1) evidencing a choice – even blinking eye shows competence 2) reasonable outcome of choice – has person reached reasonable decision? --used by cts‘ and dr‘s 3) rational reasons – patient must have good reasons for refusing treatment 4) ability to understand – any patient who can understand risks/benefits of treatment is comp 5) actual understanding – Quackenbush – had gangrene in feet – needed amputation; was hermit, crabby; moved to hospital; refused to amputation but amputated anyway; then wanted to go home but couldn‘t take care of himself there w/out feet; not always competent; but then judge visited him and said he was competent to refuse treatment even though he went in and out of competency; just need to be competent at time of decision to refuse treatment --still need to be concerned that he has no place to go and nobody cares about him ***Determining the Patient‘s Choice:  If you don‘t have living will, use tests like substituted judgment test, best int test  powers of atty: (=power of decision-making) usually expires when you become incompetent so durable pwr of atty lasts even when you become incompetent, allowing person you designated to continue deciding for you – good to have living will When there‘s no living will… In Re Eichner: Bro. Fox, Catholic school teacher, in vegetative state b/c of heart attack  head of order wanted to turn off ventilator b/c Bro. Fox made statements that he did not want to be kept alive as vegetable

 difference b/w being brain dead (ur pronounced dead b/c no brain activity and then ventilator turned off) and vegetative state, where your brain still has electrical activity  *but even if someone generally says, ―I don‘t want to end up like that,‖ that‘s not same as thinking about yourself in that very situation and saying I wouldn‘t want that but here, Bro‘s Fox‘s statements were made w/ more context, while talking about Quinlan case, he‘s older, more mature, as opposed to teenaged girl making offhand comment  plus, Catholic church said you can terminate extraordinary treatment so all this evidence in context giving it credence, so ok to turn off respirator In re Conroy: 3 different tests: 1) Subjective/substituted judgment – if you have strong evidence that this particular patient would have terminated when she was competent, then you can 2) Best-Interest Tests: a. Limited-Objective Test: some good evidence that patient would‘ve refused treatment and decision-maker is satisfied that it‘s clear that burdens of patient‘s life w/ treatment outweigh benefits of that life; problem is that we don‘t know if patient is burdened at all b. Pure-Objective Test: do balancing when there‘s no good evid at all of patient‘s choice– ask, do burdens of life outweigh the benefits of life; problem is that if patient not feeling any pain, there‘s no burden another case said you can‘t use these tests w/ person in persistent vegetative state b/c does not feeling anything, but then Conroy test is vague to whom it does apply Terminating nutrition/hydration was treated differently from turning off respirator --Cruzan was huge change b/c saw nutrition/hydration as treatment rather than necessity so more acceptable to terminate them --having person starve to death could mean suffering for patient, but w/ respirator, once off, they die immediately Ppl who are competent can refuse treatment PPl who used to be competent but will no longer be can also refuse treatment if they left prior directives Ppl w/ no advance directives, not competent and never will be = trickiest issue Wendland: this case very different b/c patient was still conscious but incompetent --w/ unconscious person, patient is not suffering --family split; wife wants to remove feeding tube and mother wants to continue --hospital decides w/ wife to remove tube --patient suffering plays major role in deciding rt to die cases, and here, patient, being conscious, is suffering by knowing that he‘s being kept alive by treatment against his will --but from mother‘s pov, there‘s suffering in starving him to death and dying process for conscious; can‘t undo death --risk-averse analysis: which way will damages from jury be worse – suit for saving life of J‘sW in front of non J‘sW jury or letting patient die? Saving life will get less damages

Substituted judgment test used – for autonomy of patient; not enough clear and convincing evid to terminate treatment to meet std; court can‘t be sure that patient wanted to have tube removed Best Interest std – so court goes by this alternative arg. of wife, but fails to remove tube b/c not enough evid that this is in best int of patient; what wife considers to be in best interest of patient is not the guiding std. O’Connor: patient here is conscious and able to communicate; used to be competent; not anymore; squeezed her daughter‘s hand volitionally --patient before made statements that she did not want to be artificially kept alive but not suff evid that patient contemplated food and water as treatment to be continued --so keep alive unless there‘s clear and convincing evid that patient wanted food and water terminated Quackenbush got permission to refuse treatment, but Bouvia didn‘t both competent --group all cases by conscious & competent v. incompetent --clear and convincing evid std. only applies to terminating treatment, not maintaining it Terry Schiavo:  real issue/fact: **what does she want, the patient??  She can‘t talk, so who decides?? --husband wants court to decide b/c he disagrees w/ parents; for husband to decide would involve conflict of interest b/c he had $ at stake App. Ct. said trial ct made proper substituted judgment test (which almost always means refuse treatment and obj. tes/best int test means don‘t terminate treatment b/c that‘s best int of patient) but best int test should also include choice to end treatment Court not deciding that she would‘ve terminated, but saying trial ct properly found there was clear and convincing evid that she would‘ve terminated 3rd Category: Healthcare for Totally Incompetent Patients – imcomp before and always Saikewicz: court used substituted judgment test – assume he‘s competent for 10 minutes, understands his situation, and then decides and goes back to being incomp --ct first uses best interest test – has anyone ever refused this treatment before? Dr‘s said no, so then you would treat incomp in same way too BUT court said that can‘t use majority wishes on individual handicap here; court blows past best int test b/c test here yields treatment [acc to prof, ct should‘ve cont‘d treatment b/c that‘s what most ppl do] --so ct decided under substituted judgment that patient would decline treatment In re Storar: patient w/ mental age of 18 months – needed transfusion for bleeding bladder; mother first gave permission for transfusion but then wanted to deny it. --**court treats transfusion here as food and water – essential to life so can‘t deny it --court used best interest test b/c have to treat patient as infant b/c of mental age so w/ children, use best interest test  Saikewicz and Storar – 2 different results and outcomes w/ same kind of patient

--substituted judgment  no treatment (only used in cases where ppl don‘t want to treat)/ --Best interest  treat Newmark v. Williams: child‘s parents are Christian Scientists – didn‘t want to treat for cancer – chances of success for treatment very low, 40%; would cause suffering, no cure  if parent‘s decision to withhold treatment is reasonable outside of religious reasons, don‘t even need 1st Am freedom of relig, b/c non-relig parent would refuse too Law: Parents are the decision-makers of kids‘ treatment; but that right is not absolute if child will die…parents are abusive or neglectful, or if parent trying to make child a martyr or not acting in best interest of child if no treatment causes death, then focus on best interest of child  it‘s in best interest of child to refuse treatment; so parents can refuse treatment not on basis of religion, but on basis of low chance of success, failing best interest **can‘t enforce relig belief on child b/c child not old enough to have own autonomy and belief; gets tricky when child is teenager who refuses treatment  so w/ kids, court won‘t let relig beliefs govern; will use best interest test **can‘t use substituted judgment test when patient has no autonomy (but exception w/ incomp in Siakowicz) W/ KIDS & *FOREVER INCOMP, ONLY BEST INT TEST!!! Newborns: can‘t use substituted judgment test at all w/ newborns b/c no autonomy at all so they have no judgment to substitute Miller v. HCA:  holding was wrong!  parents said they didn‘t want any treatment at birth of newborn; knew that child would die w/out treatment but wanted nature to take its course; but hospital treated anyway court said that there‘s exceptions to when there‘s no parental consent  when there‘s emergency; hospital didn‘t ask parents who were there for permission --Emergency = an unexpected event. But this emergency situation was expected!! There was never really an emergency! Ct fabricated emergency to justify treatment **Why is this different from cases where parents can‘t refuse life-saving treatment for children?  Can argue that, yes, whether newborn or child, parents can‘t refuse lifesaving treatment for them diff. b/c deals w/ chance of success – w/ newborn, if chance of success is low, can refuse treatment, but w/ kids, a blood transfusion, for ex., will save life, so can‘t refuse treatment  parents just have broader rts w/ treatment for newborns so now very hard for parents to refuse treatment for newborn if hospital wants to treat Physician Assisted Suicide WA v. Glucksberg – pl‘s arguing that WA‘s law banning assisted suicide violated due process of 14th Am; argued their liberty interest violated --pl‘s argued they had not just right to die, but to have help in committing suicide --but reality is that pl. is not committing suicide b/c dr. is killing patient --problem: ppl confused in Cruzan right to refuse food and water w/ the right to suicide *Doctrine of double effects not like suicide: increased medication hastening death is meant to reduce pain as goal, not to kill; death is just byproduct – so there‘s double effect

--but w/ assisted suicide – the goal is death. – there‘s no double effect this is best argument for why assisted suicide is not ok but palliative drugs are -- palliative treatment that hastens death v. assisting suicide to cause death Vaco v. Quill: NY forbid assisting suicide but allowed patient to refuse lifesaving treatment created 2 classes of ppl: ppl on lifesaving treatment who can‘t kill themselves and ppl in good health equal protection argument: 2 classes are treated unequally ct rejected eq. prot arg b/c everybody is prohibited from assisting suicide you can refuse treatment but you can‘t hasten your death/kill yourself doctrine of double effects – you take med to ease pain and effect is hastened death Gonzalez v. Oregon: Oregon Death w/ Dignity Act challenged Fed gov‘t tried to control prescriptions to lethal drugs to commit suicide – Controlled Substances Act – dealt w/ marijuana, Ritalin, etc. SCt. Held that Controlled Substances does not allow the fed gov‘t to prohibit drugs prescribed to patients  Oregon statute upheld Oakland Cannabis Buyers’ Cooperatuve: Is there medical necessity exception to Controlled Substances Act? NO Fed gov‘t classified marijuana under schedule I – its only acceptable use is for research --ct allowed gov‘t classific of drug to be final word even if it had some other use  this ? left open: what about marijuana that is grown, harvested, used all in CA? then federal statute wouldn‘t apply  b/c it depends on commerce clause  but Gonzalez v. Raich said that doesn‘t matter; can‘t regulate in-state drugs to regulate out-of-state drugs? Research Involving Human Subjects: std‘s here are clearer than death/dying cases --**Nuremberg Code rules: 1) voluntary consent of human subject, 2) results of study have to be worth getting and there‘s no other way to get them than thru human study, 3) suffering and injury should be minimized 4) if there‘s substantial risk, dr. should be subject too 4) degree of risk should never exceed importance of problem…10) should be prepared to terminate experiment at any time if it‘s too dangerous P. 412, Hypos – a) line b/w innovative treatment (ok, paid for by ins) and experimentation (not ok, not insured) – IRB = institutional review board Placebos: what do you disclose to subjects? Conventional treatment, new treatment, and placebos = 3 groups of subjects to test success rate of drug --measure success rate of drug against placebo; if placebo has same success rate as drug, drug is worthless; if ppl know they‘re getting placebo, then placebo effect is gone; what do you do if ppl on placebo get worse? Then you have to give them drugs --treatment study cannot include placebos if there‘s a treatment; can only use placebo if there‘s no treatment? Grimes:

in study, hospital got landlords to fix lead paint at varying levels to test different measures on kids (some paint removed, all removed, none removed) problem: experimental subjects = kids – harmed by less than full lead abatement so kids were purposefully exposed to lead; parents not fully informed  hospital said if family knew full risk of study they would refuse study court said, if family says no, then you don‘t do study; human subject is entitled to full disclosure of material facts ***best interest of child will be used to weigh partaking in study Despite consent of parents on behalf of kids --organ donation by child to his sibling – sometimes courts would say it‘s not in best interest of child to donate organ so can‘t do non-therapeutic experiments on kids/subjects unable to consent b/c there‘s no outweighing benefit – no therapeutic effect under best interest  Distributive Justice & Allocation of Health Care Resources 1) libertarian market approach – if you can afford it, you deserve best treatment 2) egalitarian – everyone should get equal health care Ex. There‘s not enough organs for transplant. Controversy w/ organ selling – Can‘t buy/sell organs in U.S. Can buy kidneys in India --factors to see if you get organ: how long do you have to live, how long have you been waiting, or if they‘re alcoholic and they get liver, likely to destroy it by drinking more Pros and Cons of organ selling: p. 468 Newman: loved ones have property interest in body of relative; is there compelling state interest for coroner to remove cornea of corpse for eye-bank to get corneal tissue? coroner must get consent first under amended CA law Strunk: can you take kidney from incompetent sibling and give it to mentally fine sibling? court used both best interest test and substituted judgment of sibling test it‘s in best interest of disabled sibling to donate kidney Pescinski: no donation by sibling?; rejected sub/judgment and used best interest p. 471  Ch. 8: Public Health: 8 Areas, p. 474 pursuant to **state police power, gov‘t can compare risk of vaccine to risk of not getting vaccinating and conclude that balance favors vaccination and make it mandatory Test: state health regulations must have permissible state objective and reasonable justific. for means to fulfill goal  then compulsory vaccination ok despite no consent All states have some exemption from vaccination for religion except in 2 cases – p.482 if you‘re injured by vaccine, most appropriate entity to compensate you is gov‘t for forcing you to get vaccine, not vaccine mfr.

2005 EXAM ask ?‘s by Friday!! ALLOCATE YOUR TIME EQUALLY!! 1.) women have choice of how to deliver!! Should not be forced to C-section and hospitals should not say take it or leave it!! Plus, risk of VBAC is very low! hospital policy was very questionable – in the wrong 3.) A. Informed consent process  2 choices are attach limbs or do prosthesis – anyone would say reattach my limbs! There‘s very few risks of this!!  answer is short, not big deal!! There‘s no informed consent process b/c no risks – no material risks that would change patient‘s mind in informed consent Causation!! there‘s nothing that would cause patient to refuse reattachment emergency situation so ok to reattach right away b/c no one there to ask and anyone would say yes anyway B. is faulty suturing job is due to negligence  sue dr. smith for negligence, dr. love for inadequate supervision under capt and ship and failure to supervise resident, sue hosp b/c resident is employee of hospital under respondeat superior, and negl has to have been s/t that dr. love wouldn‘t have done; can argue dr. smith shouldn‘t have touched kid in this emergency; or hospital direct liability if if job was not negligent – no lawsuit 2.) Like Baby K case – bottomline: dr‘s should not have final say to cut off treatment when parents have final decision-making power!!  this is opposite situation where parents want more treatment and dr‘s and hosp don‘t Parents have right to decide** - it‘s important that their authority is overruled against giving treatment this is first thing you must address!! must put answer in context of facts!! hospitals can‘t override parents but depends – if parents want treatment, hospital should give it; must discuss when parental authority has been taken away – when their right to say ―no‖ treatment was taken away – but hard to apply that here in favor of hospital  so court here wrong! Parents have rt to insist on continued life; who is supposed to judge quality of life? Baby not in coma, so does feel pain what is real basis for dr‘s refusing treatment? Cost, quality of life? baby never was competent and never will be

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