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.