Y516 STUDY NOTES
Lecture Eight: Professional/Patient Relationship I
Contract
A health care provider may be held accountable to a patient in tort for medical negligence, as we have seen previously, if the provider breaches a duty owed to the patient and the patient is damaged as a result. The Dingle case introduces us to another cause of action open to Ps. This is an action based in contract, rather than tort, law. Prior to surgery, the patient must be informed about risks, alternatives, outcomes, etc. In addition, informed consent will relate who will be performing the procedure. This is especially important since the patient will likely be asleep for the operation. A physician who agrees to a specific allocation of responsibility in order to obtain consent and then proceeds in contravention of that has not obtained informed consent. The documentation is all important. If, in fact, a special understanding was reached between the parties, but the written consent is silent in that regard, it will be difficult for a P to prove that such special understanding should obligate the physician.
Referral---shifts responsibility to referral MD/DO. All primary care physician (PCP) is liable for is that referral was reasonable, prudent.
Consult---PCP retains primary responsibility. Consultant makes recommendations but implementation of those is up to PCP/patient. PCP retains primary liability.
Most physician/patient contracts (Ks) are inferred from the context, i.e. MD/DO sees patient, undertakes to provide care. K is formed without any legal document or oral offer/acceptance.
What are the advantages of a cause of action (COA) in K for the P?
Longer SOL (statute of limitations)
No need to prove negligence
Remedy for enticements
Promise of cure or particular result, e.g. plastic surgeon ads
Disadvantages?
Hard to get pain/suffering/non-economic losses
Only available to actual patient, not heirs, loved-ones, etc.
Confidentiality/Disclosure
Understand the difference between invasion of privacy and breach of confidence.
Invasion of Privacy
Can be committed by anyone
May actually be 4 different torts: identity theft, unreasonable/offensive intrusion upon another’s seclusion, public disclosure of private facts, false publicity
Breach of Confidence
Can only be committed by someone who holds info in confidence
Involves wrongful disclosure of confidential information
Physician has duty to keep in confidence information obtained as a result of the physician/patient relationship
Duty is not absolute and there are times when breach of duty is justified and required by statutory or judicial law, e.g. child abuse/communicable disease/protection of 3d parties or the public
Special issues in cases of HIV/AIDS
Tension exists between keeping confidences to encourage patients to seek out health care and disclosure to protect at risk parties from transmission. Some states have legislation requiring MD/DO disclosure in certain circumstances to certain classes of people, e.g. sexual or needle-sharing contacts, spouses, children.
In Millard v. Corrado, a general surgeon (D) who never examined or even met the P could be sued where the surgeon was unavailable to operate on the P because he left town when he was on-call for the ER without advising the ER of his unavailability. The P who was severely injured in an MVA (motor vehicle accident) was brought 14 miles from the scene of her accident by the EMS to the hospital where D was on-call believing that she could get needed surgical care there. Since P had to be transferred from the initial hospital to another hospital several miles away, her treatment was delayed by 4 hours during which time key organs were ischemic for so long they infarcted and had to be removed. Had the EMS known that D was not at the hospital, they would have initially taken the P to another hospital and avoided all the delay. The court said that on-call physicians owe a duty to reasonably foreseeable emergency patients to provide reasonable notice to appropriate hospital personnel when they will be unavailable to respond to calls. This duty exists independent of any duties flowing from a physician-patient relationship. Similarly, physicians who contract with an HMO owe a duty to patients enrolled in the HMO to whom they have been assigned even if they have not yet seen those patients. Recall the diagram from Hand v. Tavera:
Humana----contracts with------Dr. Tavera
^^ money flows from Humana to Tavera to care for patients
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contracts / with / creates obligation of Tavera
/ / to treat Hand
Hand’s (patient) Employer ------/
money flows from Hand’s employer to Humana to care for employees
In Mills v. Pate, the P sued for breach of warranty when her plastic surgery went awry. The D argued that P was just trying to get around the Medical Liability and Improvement Act (like the Indiana act that requires P’s to jump through some hoops before bringing a negligence claim in court) which is for claims of medical negligence. While the court said that tort claims may not be recast as contract claims, where the doctor guarantees a certain result (she would look beautiful with smooth skin), the proof of such a claim does not require that the P prove the D failed to meet the accepted SOC (standard of care) for plastic surgery, just that the representations were made, she relied on them, and the results were not as promised.
Tunkl v. Regents of University of California is a very poorly reasoned case where the Supreme Court of California relied on what it called the “superior bargaining power” of the hospital to exact an exculpatory clause (release from negligence claim) from a patient in return for what likely was his free medical care. The hospital likely was the hospital of last resort in Los Angeles for the homeless and penniless people of the street. Other hospitals certainly weren’t competing to be their care providers. Providing free care is a lot like being a Good Samaritan. Just as the Good Samaritan is protected from lawsuits for negligence by the people he or she treats for free, perhaps the Good Samaritan hospital should also be able to provide free care without the risk of a law suit, at least in those cases where the patient executes an exculpatory clause.
In Shorter v. Drury, a Jehovah’s Witness who, along with her husband, signed a medical release for any adverse consequences of their refusal to allow her to transfused with blood in the event her D&C resulted in bleeding. She ended up bleeding to death after Dr. Drury negligently lacerated her uterus with a sharp curette. Even though the jury found him negligent, they apportioned damages and felt that the patient and her husband were 75% responsible for the overall damages which included her death. The husband felt the medical release form should not have been allowed in evidence and took exception to jury instructions relating to assumption of risk (by the patient and her husband). Plaintiff tried to characterize the release as only operative in the event blood was required for a non-negligent operation and said that to let it apply in this case would operate to release the D from the consequences of his negligence. The court held the release valid and adopted the view that the release applied only for the consequences arising out of her refusal to accept blood (i.e. her death), not the negligence itself, for which the surviving husband was to be compensated at 25% of the total. The court held that assumption of the risk was a valid defense and that the submission of jury instructions did not violate the free exercise clause of the First Amendment because there was no state infringement on the free exercise of her religion.
HIPAA
This Act was originally designed to make sure people who lost their jobs didn’t automatically lose their health insurance. Amendments added a whole host of so-called privacy provisions threatening health care workers with stiff fines or imprisonment for violating their provisions. In a nutshell, since privacy is a fundamental right (due to fairly recent [second half of the twentieth century] Supreme Court decisions), and health care involves the collection of sensitive private information, and since the internet increases the ability to exchange that information, the federal government alleges it needs to safeguard such information. You see, people must have full confidence that health information will not be shared with insurers (inappropriately, such as genetic information), employers (lest jobs be lost), family (who may not be forgiving), and marketers (who may be able to target your profile for merciless sales pitches). Since the entire health care system is based on the willingness of people to share intimate secrets, the whole system will collapse unless the federal government assures privacy by threat of purse and liberty of those who provide health care services. State laws are not good enough because they are not uniform and we cannot trust the states to get the job done. The real purpose of this law is to facilitate electronic medical record-keeping by creating the illusion that the privacy and confidentiality intuitively at risk by such technology will be safeguarded as a result of the threat of federal government sanctions which include stiff penalties and/or jail terms. Why? Because the government wants everybody to buy in to this electronic technology. Why? Because information is power and governments are better able to control their populations if they have a lot of information about them. This law exists to make you feel comfortable about having your private secrets housed in cyber space, which will make it that much easier for the government to access them and to control you. Did I forget to mention that the government is one entity that does not need your permission to access your electronic health information?
Duty to Protect Third Parties
MD/DO
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no obligation to enter into a K to treat (ER exception)
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But, what if doctor has info that, if disclosed, might prevent harm to a 3d party?
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Disclosure to a 3d party = LiabilityNondisclosure = Liability
HumphersTarasoff
Pate v. Threlkel, Florida (1995), in 4th but not in 5th or 6th editions, asks does an MD/DO owe a duty of care to the children of a patient to warn the patient of the genetically transmissible nature of the condition for which the doctor is treating the patient?
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Mothermedullary thyroid Ca 1987, genetically transferable disease
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|MD doesn’t inform mother of genetic nature of disease
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1990 daughter diagnosed with same Sues---alleges MD knew or should have known risk to children. Duty to warn mother to have children tested.
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MD allegesno professional relationship with children = no duty
Court Analysis:
1)Did MD have duty to warn mother of genetic disease? Would a reasonably prudent PCP warn a patient of genetically transmissible disease?
2)To whom does the alleged duty run? It runs to the mother who is in privity of contract. But is there a 3d party who is the intended beneficiary? Privity is NOT always needed to establish liability.
Ratio Decidendi: When the prevailing SOC creates a duty obviously for the benefit of certain identified 3d parties and the MD/DO knows of their existence, a duty runs to those 3d parties, i.e. they would have a cause of action against the doctor for failure to warn. BUT, the duty to warn is a duty to warn the patient (i.e. parent of the 3d party), not the 3d party herself. If MD/DO can prove that he/she told the parent, the duty is satisfied even if parent did not convey the info along to the child.
SO, a 3d party can be the beneficiary of a duty owed by a physician to a patient, even if there is no direct obligation of the doctor to inform the 3d party. Indeed, it appears that some jurisdictions would regard that as a confidentiality violation.
Also, recall the Reisner case, where the boy friend of a girl who contracted HIV from a tainted blood transfusion that she was never told about, sued her doctor when he was diagnosed with HIV. The doctor’s duty to inform was to his patient (the girl). Had he done so and she failed to inform her boy friend, then the doctor would not be liable to the 3d party. This is another tell the patient case, not tell the 3d party about the patient case.
Tarasoff,California (1976) breaks the mould. The court ruled that a psychotherapist owed a duty to a 3d party to inform her that she is at risk of harm based on the otherwise confidential info obtained during a therapy session with the patient. Is the difference here the animosity of the patient toward the 3d party, such that he would obviously not be going to warn the 3d party himself. Indeed, it is the patient that is considered the risk to the 3d party, and the 3d party is identified and should be easily found and warned by the psychotherapist. In the Reisner case, there is no directly identifiable at risk 3d party, i.e. the doctor doesn’t know what future boy friends 12-year old Jennifer is going to sleep with. If he did, and she told the doctor she was not going to tell Daniel Reisner about her condition, would the doctor have the duty to inform him then? The answer may require a close examination of the statutes in the state regarding HIV confidentiality and whether the jurisdiction has endorsed the Tarasoff rule.
In Biddle, an Ohio hospital and a lawyer member of its board of directors collaborated on a scheme that would benefit both the hospital and the law firm by allowing members of the firm to look at records of hospital patients to determine if they qualified for supplemental security income because then the hospital could bill the government for their services and get at least partial payment. The law firm would get a fee for each one of these patients it identified. The trouble is, employees of the firm had to look at confidential medical records of patients in order to accomplish this. They were not privileged to do so. When the local news media got wind of this, a class action on behalf of the 2,000 or so patients whose confidences had been violated, was commenced. The attempt by the defendants to have the attorney-client privilege provide some kind of defense was fruitless. While the attorney owes confidentiality to the client (here the hospital), that confidentiality is not owed to the hospital patient, so the hospital was not privileged to provide such an unauthorized disclosure to its law firm.
The Acosta case stands for the proposition that while HIPAA does not create a private cause of action for a plaintiff against one who violates the plaintiff’s HIPAA rights, it may be evidence of a violation of the standard of care owed to patients regarding their protected health information.