PROFESSOR M. FLYNN MEDICAL MALPRACTICE COURSE DESIGN AND PURPOSE The Medical Malpractice course is designed for students with or without a medical background. The course will have two segments. The first segment of the course will overview medical malpractice tort law with a primary emphasis on the Florida law of medical negligence. The second segment of the course will focus exclusively on medical malpractice law in Florida. The course will cover medical malpractice from both the plaintiff and defendant viewpoints. The purpose of this course is to provide students a specialized understanding of medical malpractice tort law and an in depth understanding of Florida medical malpractice law. TEXTS The required text for this class is the Florida Medical Malpractice Law Supplement prepared for this class. This book contains over 900 pages of material and will be available for purchase (CHECK OR CASH ONLY) from my secretary, Janet Corso, or any of the other faculty secretaries January 5, 2004. It is important that you purchase the text prior to the first day of class because you will have an assignment due the first day of class. In addition, other materials will be handed out and assigned for some classes. ADMINISTRATIVE MATTERS In Class Time - Class time will be spent dissecting cases and statutes and discussing the answer to specific medical malpractice problems. Writing Assignment - There will be ten (10) writing assignments for this class. The writing assignments will be based on a comprehensive medical malpractice problem, which is attached to this syllabus. Each writing assignment will be geared to the readings for class and involve the practical application of medical malpractice law. The writing assignments must be turned in at the end of the designated class. I will not accept or read any writing assignment that is late, including the first writing assignment, which will be due the first day of class. Failure to timely turn in a writing assignment will result in that student receiving no grade points for that assignment. Each writing assignment will be handed out in class the week before it is due. The first writing assignment, which is due the first day of class, can be downloaded from the NSU web page or picked up with your purchase of the text. Class Attendance - PROMPT ATTENDANCE TO EVERY CLASS IS EXPECTED AND REQUIRED! This strict attendance policy is important because this class meets only once a week and each class will build on the previous week's class. I will take attendance by way of a seating chart. A student will not be permitted more than one (1) absence without proof of a medical or other emergency. Violation of this attendance policy may result in the lowering of a student's grade by one-half of a grade. Class Participation and Preparation - All students are expected to be prepared for class and to participate in the class discussion. Preparation for class must include reading all of the assigned materials including the cases and statutory sections. You must carefully read and study the statutory materials before class and be prepared to discuss the meaning and application of every statutory section. The cases will help you understand the application of the statutory provisions. You must carefully read and study the cases and be prepared to discuss the principles of law applied in each case and integrate the case law with the statutory sections. This preparation will also permit you to satisfactorily complete the writing assignments. If you can adequately prepare for class without briefing each case, then feel free to not brief the cases. Honor Code and School Policy - All Nova Southeastern University and Shepard Broad Law Center school policies and honor code provisions, as supplemented and revised by this syllabus, apply to every aspect of this class. GRADING Each student's grade for this class will be based on the total grade points earned from the writing assignments. There will not be a final exam. Each writing assignment will be worth 15 points. OFFICE HOURS My scheduled office hours are Tuesdays and Thursdays. I will also be specifically available for students in this class from 6:00pm to 7:00pm on Mondays. In addition, I will be happy to meet with any student by appointment or on a drop in basis as my schedule permits. COURSE OUTLINE AND READING ASSIGNMENTS Attached is the course outline and reading assignments for this class. Other materials for class will be handed out in class. This class meets on Thursdays from 4:00pm-6:00pm in Classroom #1. MEDICAL MALPRACTICE READING AND WRITING ASSIGNMENTS CLASS READING ASSIGNMENT 1/15 Supplement Section 1 - General Overview of Course/Physician Duty and Standard of Care Writing Assignment #1 due 1/22 Supplement Section 2 - Hospital Liability and Vicarious Liability Writing Assignment #2 due 1/29 Supplement Section 3 & 4 Proof of Negligence and Apportionment of Fault Writing Assignment #3 due 2/5 Supplement Section 5 & 6 Wrongful Death and Damages and Informed Consent Writing Assignment #4 due 2/12 Supplement Section 7 - Analysis of the Florida Medical Malpractice Statute 2/19 Supplement Section 7 - Continuation of Analysis of Florida Medical Malpractice Statute 2/26 Supplement Section 8 - Statutory Coverage Writing Assignment #5 due 3/4 NO CLASS 3/11 Supplement Section 9 - Statutory Requirements Parts I & II & III Writing Assignment #6 due 3/18 Supplement Section 9 - Statutory Requirements Parts IV & V & VI Writing Assignment #7 due 3/25 Supplement Section 10 - Statute of Limitations Part I 4/1 Supplement Section 10 - Statute of Limitations/Repose Part II Writing Assignment #8 due 4/8 NO CLASS 4/15 Supplement Section 11 - Discovery Part I and II Writing Assignment #9 due 4/22 Supplement Section 12 - Damages Writing Assignment #10 due NO FINAL EXAM MEDICAL MALPRACTICE WRITING ASSIGNMENT PROBLEM Doctor Peter Jones is a general surgeon and a winter resident of Panama City, Florida and a summer resident of Flagstaff, Arizona. Doctor Jones is licensed to practice and does practice medicine in both Florida and Arizona. Doctor Jones maintains an office in both Panama City and Flagstaff. Each office is open when he is living in that city. Through his offices, Doctor Jones practices general surgery on private patients based on referrals from other physicians. As a general surgeon, Doctor Jones performs the more routine surgical procedures, including but not limited to appendectomies, gall bladder surgery and hernia repair surgery. Doctor Jones graduated from Creighton University Medical School and served his residency and internship in General Surgery at the East Saint Louis Community Hospital. Doctor Jones received specialized training in the use of lasers as a general surgeon. Besides his private practice patients, Doctor Jones also works for Emergency Health Care (EHC). EHC is in the business of providing physicians to staff the emergency rooms and trauma centers for hospitals throughout the United States. Republic HMO, which owns 500 hospitals in the United States, contracted with EHC to provide physicians to staff all of its emergency rooms and trauma centers. As part of that agreement, EHC agrees to provide each Republic Hospital with a physician staff to handle the entire emergency room and trauma center needs of each hospital. Every EHC doctor is required to wear clothing supplied by the hospital, which contains the name of the hospital, the physician's name, an EHC emblem and a Republic HMO security badge. Every EHC provided physician is granted hospital staff privileges when the physician is working as an emergency room or trauma center doctor. Doctor Jones signed a contract with EHC to work as an emergency room general surgeon for both the Sunset Hospital in Panama City and Holy Names Hospital in Flagstaff. Julie Banks, a 29 year old, private patient of Doctor Jones in Flagstaff, decided to take a vacation in Panama City. Ms. Banks rented a beach house on the Panama City beach and settled in for ten days of rest and relaxation. On January 10, 1996, after a long, hot day on the beach, Ms. Banks returned to the beach house, switched on the Sears, window mounted portable air conditioner in the master bedroom and took a shower. When Ms. Banks exited the shower, the portable air conditioner exploded into flames. The flames from the explosion severely burned Ms. Banks face. She suffered no other injuries from the explosion. Feeling like her face was on fire, Ms. Banks climbed into her car and drove the quarter of a mile to the Sunset Hospital. Ms. Banks entered the Emergency Room Department of the Sunset Hospital. Doctor Jones, who was on duty, recognized Ms. Banks as one of his patients. Doctor Jones immediately took Ms. Banks out of the Emergency Room Department so that he could assess Ms. Banks condition. Doctor Jones was given Treatment Room #5 in the surgical wing of the hospital to examine Ms. Banks. Ms. Banks was now feeling the full effects of the third degree burns covering the right side of her face. Ms. Banks was squirming in pain and begged Doctor Jones to do something to relieve her pain and fix her face. Doctor Jones diagnosed Ms. Banks burns as severe and called for the burn specialist and the plastic surgeon on duty to evaluate Ms. Banks condition. No plastic surgeon or burn specialist was immediately available to evaluate Ms. Banks condition. Doctor Jones decided that immediate cosmetic surgery was required to save Ms. Banks' face and reduce the amount of permanent scarring. Doctor Jones advised Ms. Banks that although he was not a plastic surgeon or a burn specialist, he thought immediate surgery to repair her face was needed. Ms. Banks begged Doctor Jones to do whatever he had to relieve her pain and save her face. After again unsuccessfully trying to find a burn specialist and a plastic surgeon in the Emergency Room Department and calling the burn specialist and the plastic surgeon on call, but getting no answer, Doctor Jones agreed to perform cosmetic surgery on Ms. Banks face immediately. In the operating room, EHC Nurse Anesthetist Brenda McKay and a Sunset Hospital employee Operating Room Nurse, Joe Bell, assisted Doctor Jones. Ms. Banks surgery turned out to be more complicated than Doctor Jones first anticipated. Ms. Banks surgery lasted five hours and Doctor Jones was able to repair the immediate damage to her face. However, Ms. Banks still had a three-inch long by four-inch wide scar from the scalp line above her right eye to the top of her eyebrow. Doctor Jones advised Ms. Banks that the cosmetic surgery on her face went as well as could be expected in light of the severity of burns to her face. Doctor Jones advised Ms. Banks that she was a lucky person and that the remaining scarring would disappear within 60 days. Doctor Jones set up weekly office appointments for Ms. Banks to check on her progress. The scar on Ms. Banks forehead did not disappear in 60 days. In fact, at the end of 60 days the scar appeared unchanged and permanent. On June 20, 1996, Ms. Banks made her last visit to Doctor Jones' office upset that the scar on her forehead was still so noticeable. Doctor Jones told Ms. Banks that her face had completely healed from the surgery and that the scar on her face was really not that noticeable. Ms. Banks, who returned to Flagstaff, contacted six lawyers concerning a possible medical malpractice lawsuit against Doctor Jones in Florida. Bobby Adams, a lawyer in Tallahassee, agreed to evaluate Ms. Banks claim and take on her representation if she had a case. Finally, on December 10, 1997 Lawyer Adams petitioned the circuit court in Panama City for a 90-day extension of the statute of limitations. Lawyer Adams then conducted a painstaking review of Ms. Banks medical records, which records, Ms. Banks delivered to Lawyer Adams office. Lawyer Adams then contacted several plastic surgeons and burn specialists to review and evaluate Doctor Jones' and the Sunset Hospital's conduct during Ms. Banks surgery. Doctor Tom Owen, an experienced plastic surgeon who specializes in burn victims and who has worked for the past 15 years at the Burn Center of Jackson Memorial Hospital in Miami, agreed to assist Lawyer Adams. Dr. Owen wrote Lawyer Adams a letter that states: "Doctor Jones had no business performing cosmetic surgery on Ms. Banks on January 10, 1996. The severity of the burns to Ms. Banks face contraindicated immediate cosmetic surgery. Rather, Dr. Jones should have treated the wounds to Ms. Banks face by ice packing her wounds to reduce any swelling and otherwise stabilizing the wound. Any surgery on Ms. Banks face should have been postponed until the initial trauma to her face had subsided. Further, Doctor Jones should not have performed the surgery at all because of his lack of experience and training in performing any type of cosmetic surgery. The kind of burn wounds sustained by Ms. Banks required the expertise of a plastic surgeon that is a burn specialist not a general surgeon. In my opinion, had Doctor Jones treated Ms. Banks wounds by soothing her pain and stabilizing her condition and then waited for a burn specialist plastic surgeon to evaluate Ms. Banks' condition, immediate cosmetic surgery would not have been performed on Ms. Banks. If this protocol had been followed it is more likely than not that Ms. Banks would not have suffered permanent scarring to her face. In addition, the Sunset Hospital's failure to have a burn specialist plastic surgeon available to assess the condition of burn victims and perform necessary surgery is a blatant dereliction of the hospital's duty to provide competent and comprehensive emergency and trauma care." Upon receipt of Dr. Owen's letter, Lawyer Adams mailed a document entitled a Notice of Intent to Sue to Sunset Hospital, Republic HMO headquarters in Flint, Michigan and EHC headquarters in Des Moines, Iowa on March 7, 1997. This document notified Sunset Hospital, EHC and Republic HMO that Ms. Banks, through her lawyer, intended to initiate a medical malpractice lawsuit against each one of them. Also accompanying the Notice of Intent to Sue document was a request from Lawyer Adams for the roster of burn specialist plastic surgeons and other plastic surgeons that work in the Emergency Room Department or any other department of the Sunset Hospital. In addition, Lawyer Adams requested the name of the burn specialist plastic surgeon or any other burn specialist or plastic surgeon that was working or otherwise on call to work in the Emergency Room Department or any other department of the Sunset Hospital on January 10, 1996. Lawyer Adams request for information contained a certificate of mailing identifying Sunset Hospital, EHC and Republic HMO as the recipients of the request. Upon Sunset Hospital's, EHC's and Republic HMO's receipt of Lawyer Adams' Notice of Intent to Sue on March 11, 1997, these entities contacted Bill Cutler to act as the lawyer for all three entities. Lawyer Cutler is a lawyer employed by UNC Insurance, the liability insurer for Sunset Hospital and EHC. Republic HMO is self-insured but agreed to hire Lawyer Cutler as well. All three entities split the cost of retaining Lawyer Cutler to represent their collective and individual interests. An agreement retaining Lawyer Cutler to represent all three of these entities was signed by all parties on May 11, 1997. Lawyer Cutler received and reviewed Lawyer Adams' Notice of Intent to Sue document on May 12, 1997. Upon consultation that same day with his clients and their collective assurance that Ms. Banks' medical malpractice claim was meritless, he mailed a letter dated May 12, 1997 to Lawyer Adams on behalf of Sunset Hospital, EHC and Republic HMO rejecting Ms. Banks claim. Subsequent to Lawyer Cutler's mailing of the response to Ms. Banks' Notice of Intent to Sue, he contacted Tim Collins, a nationally prominent burn specialist and plastic surgeon who lives and works in Beverly Hills, California. Dr. Collins is under contract with Lawyer Cutler to provide expert medical services when needed. Dr. Collins, who charges $10,000 to review any medical malpractice case and $500 per hour plus expenses for any testimony, has only testified for Lawyer Cutler in the defense of medical malpractice cases. Dr. Collins has reviewed over 500 cases for Lawyer Cutler but has only testified in deposition or in court in 60 medical malpractice lawsuits. Lawyer Cutler sent Dr. Collins all of the pertinent medical records, including all of Dr. Jones' medical records, and asked Dr. Collins to review Ms. Banks treatment. Dr. Collins delivered an opinion letter to Lawyer Cutler dated August 1, 1997 which stated in part: "This is not a complicated case. I have extensively reviewed the voluminous medical records of Ms. Banks, the hospital records, including copies of risk management evaluations, and Dr. Jones' own personal diary and medical records. Based on this review, I do not believe that any failure on the part of Sunset Hospital, EHC, Republic HMO, Dr. Jones or any other medical treatment providers was the cause of Ms. Banks' permanent facial scar. Perhaps Dr. Jones' should not have performed cosmetic surgery on Ms. Banks. Moreover, perhaps Sunset Hospital, EHC and Republic HMO should have been better prepared to handle burn patients in the Emergency Room Department. However, Ms. Banks' facial scaring was caused by her exploding air conditioner and not by any alleged failure on the part of Sunset Hospital, EHC, Republic HMO, Dr. Jones or any other medical treatment providers." Lawyer Adams filed a complaint for medical malpractice on behalf of Ms. Banks against Sunset Hospital, EHC and Republic HMO on July 19, 1998. The complaint was served on the named defendants on July 20, 1998. In response to Lawyer Adams' September 10, 1998 discovery requests, Lawyer Cutler identified Dr. Collins as his primary expert witness and also attached a copy of Dr. Collins' opinion letter. In addition, in further response to Lawyer Adams' discovery requests, Dr. Pat Granger was identified as the EHC burn specialist and plastic surgeon that was on call at Sunset Hospital on January 10, 1996. However, according to the discovery response, Dr. Granger is no longer employed by EHC and left the Pensacola area in June 1996. Dr. Granger did not provide any forwarding address and has not been seen or heard from since that date. Lawyer Adams filed a motion to dismiss Sunset Hospital's, EHC's and Republic HMO's answer and defenses based on the failure of each of these defendants to comply with the pre-suit requirements for medical malpractice lawsuits under Florida law. The circuit court in Pensacola denied Lawyer Adams motion. Lawyer Cutler also filed a motion to dismiss Ms. Banks' complaint and for sanctions against Ms. Banks for failure to comply with the pre-suit requirements of the Florida Medical Malpractice statute. The circuit court also denied Lawyer Cutler's motion. Lawyer Cutler noticed the deposition of Dr. Owens. Lawyer Cutler, through a subpoena duces tecum, requested that Dr. Owens bring copies of his tax returns for 1995 through 1997. Dr. Owens did not comply with the subpoena duces tecum. During the deposition, Lawyer Cutler asked Dr. Owens the following series of questions: 1. How much are you being paid for your expert opinion in this case and who is paying you? 2. How much money do you expect to receive for your services as an expert in this case? 3. How much money were you paid before rendering your expert opinion in this case? 4. How much money did you report as money received from serving as an expert for defendant's in medical malpractice lawsuits last year? For plaintiff's in medical malpractice lawsuits? Lawyer Adams objected to each one of these questions and instructed Dr. Owens to not answer those questions. Dr. Owens, who was not represented by separate counsel at the deposition, followed Lawyer Adams' advice and did not answer any of these questions. Lawyer Cutler's motion to compel production of Dr. Owens' tax returns for 1995 through 1996 and to answer these four deposition questions was denied. Prior to the final pre-trial conference, scheduled 60 days before trial in this case, Lawyer Cutler, on behalf of Sunset Hospital, EHC and Republic HMO, formally requested voluntary binding arbitration of Ms. Banks medical malpractice claim. Lawyer Adams advised Ms. Banks that the voluntary binding arbitration would be cheaper and quicker. Based on Lawyer Adams' advice Ms. Banks agreed to arbitrate her medical malpractice claim against Sunset Hospital, EHC and Republic HMO. After 20 hearing days, the arbitration panel in Ms. Banks medical malpractice claim entered an order in favor of Sunset Hospital, EHC and Republic HMO and dismissed with prejudice Ms. Banks complaint. MEDICAL MALPRACTICE WRITING ASSIGNMENT #1 Concerning Dr. Peter Jones' surgery on Julie Banks, please identify, describe and explain, citing the appropriate Florida statutory sections, the standard of care applicable to Doctor Jones. Identify the point in time at which Doctor Jones acquired a legal duty to exercise reasonable care concerning Julie Banks. Please explain why and how you arrived at your answer. Describe, citing the appropriate Florida statutory sections, the ideal expert witness to testify about the standard of care applicable to Dr. Jones' surgery on Julie Banks. This writing assignment must be no longer than four (4) pages typed and double-spaced. The writing assignment will be collected at the end of class on January 15, 2004. MEDICAL MALPRACTICE Winter 2004 Professor Mike Flynn ASSIGNMENT FOR THE FIRST DAY OF CLASS, January 15. 2004: Read and be prepared to discuss the materials contained in Section #1 of the Medical Malpractice Supplement. Writing Assignment #1 due in class. The Medical Malpractice Supplement can be purchased from any of the faculty secretaries by check or cash on January 5, 2004.