Medical MalpracticeMedical MalpracticeZach ChambersAdvanced Legal Research

University of Denver College of Law

Zach ChambersUniversity of Denver College of

Law

IntroductionIntroduction

Malpractice (mal-prak’ tis)- Mistreatment of a patient through ignorance, carelessness, neglect, or criminal intentSource: Stedman’s Medical Dictionary, 27th edition

Zach ChambersUniversity of Denver College of

Law

Introduction-Introduction-Strong Medical Malpractice Strong Medical Malpractice

ClaimsClaims Dentist’s drill bit dropped down patient’s

throat during dental procedure 13-inch-long surgical instruments left in

patients at University of Washington… twice

Patient who went home from hospital chokes to death on latex surgical glove left inside his throat after treatment for asthma and emphysema

Diabetic patient wakes up after operation to find surgeon mistakenly cut off a foot and one toe

Man checks into cancer center for brain surgery and surgeon performs operation… on the wrong side of the brain

Surgical tools are left in approximately 1,500 patients each year in the U.S. Fatter patients are more prone to this due to extra space in body. (Source: USA Today)

Zach ChambersUniversity of Denver College of

Law

Introduction-Introduction-Proving Medical MalpracticeProving Medical Malpractice

Duty- Physician/ Patient Relationship

Standard of Care- National Standard/ Local Standard

Breach of Standard of Care- Negligence, Expert Witness Required

Cause of Injuries Damages

Zach ChambersUniversity of Denver College of

Law

Key Search TermsKey Search Terms Malpractice

Medical Malpractice Physician Surgeon Hospital Negligence

Medical Negligence Contributory Negligence

Tort Patient

Duty Consent Inform

Degree of Care/Skill Liability Surgical Operation Medical Expert

Zach ChambersUniversity of Denver College of

Law

Primary AuthorityPrimary Authority Cases Statutes

Federal- U.S.C.A. State- C.R.S.

Administrative Materials Federal

Regulations- CFR Agency Websites

State Regulations- CCR Agency Websites

Zach ChambersUniversity of Denver College of

Law

Primary Authority-Primary Authority-CasesCases

Key Numbers from West’s Descriptive Word Index

Physicians and Surgeons Negligence or Malpractice

Generally, Phys 15(.5)-18.130 Actions for,

Generally, Phys 18.1-18.130

Acts or omissions in general, Abandonment of case,

Phys 15(6) Diagnosis, Phys 15(7) Disclosure to Patient,

Phys 15(8) Care and skill, degree required,

Exercising as well as possessing, Phys 15(2)

Persons required to exercise care, Phys 15(3)

Consent, informed, Disclosure to patient,

Phys 15(8)

Contributory or Comparative Negligence, Phys 17

Damages, Generally, Phys 18.110

Elements in general, Phys 18.12 Evidence,

Admissibility, Phys 18.70 Expert testimony,

necessity, Phys 18.80(6.1-9)

Hospitals, liability of, Hosp 7, 8 Particular Practitioners,

Generally, Phys 15(17.1-24)

Parties Liable, Generally, Phys 16

Surgical Operations, Generally, Phys 15(12-

15)

Zach ChambersUniversity of Denver College of

Law

Primary Authority-Primary Authority-Federal StatutesFederal Statutes

Military Personnel- Defense of Certain Suits Arising Out of Medical Malpractice, 10 U.S.C.A. § 1089

Malpractice Protection for the Department of State, 22 U.S.C.A. § 2702

Professional Review, 42 U.S.C.A. § 11111

Standard for Professional Review Actions, 42 U.S.C.A. § 11112

Duty of Hospitals to Obtain Information, 42 U.S.C.A. § 11135

Disclosure and Correction of Information, 42 U.S.C.A. § 11136

Tort Claims Procedure, 28 U.S.C.A. § 2671

Zach ChambersUniversity of Denver College of

Law

Primary Authority-Primary Authority-State StatutesState Statutes

Reporting of Medical Malpractice Claims, C.R.S. § 10-1-120 (2003)

Reporting of Medical Malpractice Claims Against Physical Therapists, C.R.S. § 10-1-121 (2003)

Reporting of Medical Malpractice Claims Against Optometrists, C.R.S. § 10-1-125 (2003)

Professional Liability Insurance Required, C.R.S. § 12-33-116.5 (2003)

Qualifications as Expert Witness in Medical Malpractice Actions or Proceedings, C.R.S. § 13-64-401 (2003)

Limitations of Actions- Medical or Health Care, C.R.S. § 13-80-102.5 (2003)

Zach ChambersUniversity of Denver College of

Law

Primary Authority-Primary Authority-Federal Administrative Federal Administrative

MaterialsMaterials Code of Federal Regulations

Health Care- Department of Health and Human Services

Purpose, 42 C.F.R. § 1003.100 Definitions, 42 C.F.R. § 1003.101 Civil Money Penalties, 42 C.F.R. § 1003.102

National Practitioner Data Bank for Adverse Information on Physicians and Other Health Care Practitioners

Applicability, 45 C.F.R. § 60.3 Reporting Medical Malpractice Payments, Applicability, 45

C.F.R. § 60.7 Requesting Information, Applicability, 45 C.F.R. § 60.11

Zach ChambersUniversity of Denver College of

Law

Primary Authority-Primary Authority-Federal Administrative Federal Administrative

MaterialsMaterials Agency Websites

Department of Health and Human Services

National Practitioner Data Bank for Adverse Information on Physicians and Other Health Care Practitioners

Zach ChambersUniversity of Denver College of

Law

Primary Authority-Primary Authority-State Administrative MaterialsState Administrative Materials

Code of Colorado Regulations Colorado Department of Regulatory Agencies- Division of

Insurance Financial Responsibility Requirements for Health Care Institutions, 3

Colo. Code Regs. 702-2 Mass Merchandising of Property and Liability Insurance, 3 Colo.

Code Regs. 702-5 Colorado Department of Human Services/ Social Services

Medical Services Board-Medical Assistance Manual, 10 Colo. Code Regs. 2505-10

Colorado Department of Public Health and Environment Alcohol and other Drug Abuse Treatment Rules, 6 Colo. Code

Regs. 1008-1

Zach ChambersUniversity of Denver College of

Law

Primary Authority-Primary Authority-State Administrative MaterialsState Administrative Materials

Agency Websites Colorado Department

of Regulatory Agencies- Division of Insurance

Colorado Department of Human Services/ Social Services

Colorado Department of Public Health and Environment

Zach ChambersUniversity of Denver College of

Law

Frivolous Lawsuits?Frivolous Lawsuits? A convicted burglar sues the state of

New York for $10 million, claiming that poor medical care was the cause for amnesia that made him leave his work release job and forget to return to prison.

Man given 3 months to live by doctors quits job, outlives the prediction and sues doctors for lost earnings.

Man thought he saw demonic 666 sign on his hand while working at construction site, so he removed his hand with a circular saw, then refused to let doctors reattach it. Judge tells the doctors to abide by man’s wishes, man sues doctors for not contacting his parents to overrule the judge’s decision.

Zach ChambersUniversity of Denver College of

Law

ConclusionConclusion

Advise your clients to count their surgical

tools, mark which side of the head to operate on, don’t cut anything

off they’re not supposed to, and hold on tightly to their drill

bits.

Zach ChambersUniversity of Denver College of

Law

The EndThe End