BSL vocab + concepts

Ch4

Liability- legal responsibility for ones act or omissions

Medical malpractice is often negligence, but can also be due to a
breach of contract
Creation of Relationship
For a contract to be valid:
o Both parties must be legally competent
o There must be a meeting of the minds- offer & acceptance
o Consideration must be given
Payment of something of value in return for a
received value
o Purpose of contract must be legal
Exculpatory contract a party excuses another party
from liability; usually illegal except in waivers to do
dangerous things
o May be express or implied
Contract can exist even if physician hasnt met patient; ex.
Pathologist
o Physician who provides service to someone not a party to a
contract doesnt have traditional physician patient
relationship, although limited duty exists in the absence of
a contractual relationship
Scope of duty
Physician patient relationship based on contract since service for
payment
o Absence of a contract imposes no duty
Good Samaritan statute provision of law that provides immunity
from liability for persons who provide emergency care at the
scene of an accident
o Childs v weise w/ women going into labor sent to another
city
o Oliver v Brock established casual conversations with other
physicians doesnt entrap them into patient physician
relationships
Workers compensation is an employees exclusive legal remedy
for workplace injury or illness
o Except for hospitals and hospital employee dual capacity
doctrine
o ^came about from Guy v Arthur where plaintiff worked as
lab tech and contracted mercury poisoning from hospitals
equipment and hospital employees failed to diagnose her

condition resulting in the hospital being liable for

workmans compensation as well as tort
Physician contractually agrees to diagnose and treat patient in
accordance with standards of acceptable medical practice; not
cure. Patient pays; not follow orders
o Physician may limit scope of contract to designated
geographic area according to McNamara v Emmons
Might have to notify those affected by condition; aids and sexual
partners
Freese v lemmons liability if patient injures a third party
o Tarasoff v regents of Univesity of California doctors has
duty to use reasonable care o warn persons threatened by
a patients condition
Termination of relationship
Contract ends if patient is cured/dies, both mutually consent to
termination of patient dismissed physician/withdraws from
contract
Express abandonment physician notifies patient but fails to
give enough time for patient to secure another physician
Sullivan v O conner shows that physicians are susceptible to
liability if they fail to perform a certain prmised service but also if
they fail on a promised result that was guaranteed;
o guilmet v Campbell - w/ ulcer and full guarantee that
resulted in breach of warranty
Tort a civil offense founded on contract that results in injury to
another person, a persons property, or their reuputation
o Intentional tort wrongful premeditated action
Outrage intentional infliction of emotiona distress
o Negligence - unintentional failure to do what a reasonably
careful person would do
o Strict liability incurred when a perso commits a wrongful
act that poses high risk of harm to others
o Assault and battery are 2 intentional torts; assault is
conduct that places a person in apprehension of being
touched in a way that is insulting, provoking, or physiciall
harmful; battery is the actual touching
For medical reasons: 1 where no consent was
obtained, 2- where physician exceeded scope of
consent, 3- where consent was uninformed; informed
consent is needed
Barnett v Bachrach established that a surgeon may
be justified in operating beyond the scope of the
original consent under emergency situations
Defamation is a wrongful injury to another persons reputation.

Ch5

o Written is libel and oral is slander

o Truth of a statement is a defense; statements made in
good faith to protect private interest of physicians or
patient have priveledge
o Some statements during a judicial proceeding are
privileged and provide a defense
o 2 other types of defamation cases are 1- invasion of
privacy and 2- wrongful disclosure of confidential
information
fiduciary duty duty of individual or entity that has the power
and duty to act for another under the cicumstances that require
trust, good faith, and honesty
misrepresentation can be an intentional tort or negligent; may
allow a patient to bring suit after the statue of limitations expires
;
o statute of limitation law setting maximum period one can
wait before filing suit
prima facie enough evidence to win unless the defendant
presents contradictory evidence
ex parte hearing- one in which only one party is present
tort is a civil wrong not based on a contract; most involve
negligence
o Negligent tort requires 1- duty of care 2- breach of duty 3injury and 4-causation
Duty legal obligation to the defendant (alleged tortfeasor
wrongdoer)
o Usually expressed as to act with due care or as a
reasonable person would
o Standard of care the caution and prudence a reasonable
person would exercise under the circumstance or that is
required by authority for those situations
Reasonable prudent person standard physicians are measured
against other physicians, not against the average man
o Who is a reasonable physician?
Physician isnt liable if chosen treatment would be
recognized by a respectable minority of the med
profession
o What neighbor/ should be considered?
Locality rule
Created because of difference between rural and
urban medical practices

Has now been changed to expand to national

medical neighborhood or national medical
community
o What school of medicine do other physicians follow?
The school rool, osteopathic, allopathic,
homeopathic, chiropractic
Mostrom v pettibone chirpracter held responsible
for failing to refer to someone outside of his area
when needed
o Are the professions standards adequate?
Favalora vs Aetna casualty & surety Co patient fell
while being xrayed and medical history said she had
history of that, radiologist should have checked
medical history to make sure of medical history
rather than just looking at pictures
Helling v Carey
Breach of Duty once a duty has been established, the plaintiff
must establish evidence of the facts in the case and expert
witness testimony
Fun fact: Unlike criminal defendants, who can invoke the
constitutional privilege against self-incrimination, defendants in a
civil case must testify to facts within their knowledge
Guardian ad litem guaradian appointed by court to represent
interests of minor or incompetent person
Doctrine of res ipsa liquitor the thing speaks for itself

o
o

Theaccidentorinjurymustbeofatypethatnormallywouldnotoccurwithout
someonesnegligence.
plaintiffmustshowthatthedefendantmusthavehadsolecontroloftheapparentcauseof
theaccidentorinjury.