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Hospital Liability

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James Walker Smith


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Hospital Liability is a thorough and up-to-date working tool for the litigator/practitioner. You'll want to have it on hand before your next prospective client walks into your office.”
Fred Queller of Queller, Fisher, Dienst, Serrins, Washor & Kool, LLP, New York,
former president of the New York State Trial Lawyers Association

Whether you represent hospitals, physicians or their patients, this acclaimed publication analyzes the impact of the latest statutes, regulations, cases and trends. Hospital Liability explores issues such as: HMO liability for medical malpractice; nonmedical liability; liability for negligent ambulance service; state rulings on recovery for the wrongful death of a fetus; hospital liability for an infant's injuries in a delayed C-section; informed consent and damages for both disclosed and undisclosed complications; standards for alternative methods of blood conservation and use; punitive damages; reporting and evidence preservation requirements in child abuse and sexual assault cases; pregnancy-related actions; blood services, anesthesia, radiology, surgery, autopsy, and donation liability; hospital liability for the acts of a private physician; the degree to which the hospital owes an independent duty of care to the patient; hospital antitrust liability; the “right to die,” including a discussion of decision-making tools such as living wills and durable powers of attorney; liability insurance; and tort reform.

Hospital Liability analyzes theories of liability for the abuse and neglect of nursing home residents as well as the use of class action lawsuits to improve conditions. This timely book also includes coverage of: Modified Uniform Rights of the Terminally Ill Act for removal of life support, nutrition and hydration; the Emergency Medical Treatment and Active Labor Act (EMTALA); a report by the Institute of Medicine on improving the safety of medical treatment; expansion of HMO liability; employment issues for hospitals, including discrimination against disabled persons and sex discrimination; whether a defendant can be his own expert witness; expert testimony on the general practitioner standard of health care; Good Samaritan statutes and medical emergencies; the effect of “AIDS Phobia” on patients and physicians; and the duty of the medical provider to disclose an economic or personal interest in a recommended procedure.

Book #00596; looseleaf, one volume, 1,078 pages; published in 1985, updated as needed; no additional charge for updates during your subscription. Looseleaf print subscribers receive supplements. The online edition is updated automatically. ISBN: 978-1-58852-035-7


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  • Availability: Available
  • Brand: Law Journal Press
  • Product Type: Books
  • Edition: 0
  • Page Count: 1078
  • ISBN: 978-1-58852-035-7
  • Pub#/SKU#: 596
  • Volume(s): 1

Author Image
  • James Walker Smith
James Walker Smith, specializes in medical malpractice and product liability law. Mr. Smith, who holds a J.D. from the Fordham University School of Law and an LL.M. from New York University, has written and lectured on hospital law.

CHAPTER 1
Hospital Organizational Structure

§ 1.01 Introduction
[1] Public Hospitals
[2] Private Hospitals
§ 1.02 Governing Body
[1] Duties
§ 1.03 Medical Staff
[1] Introduction
[2] Organization
[3] Membership
[4] Committees
[5] Staff Privileges
§ 1.04 Antitrust Liability
[1] Introduction
[2] Applicable Antitrust Law
[3] Antitrust Immunity
[4] Specific Applications of Antitrust Law in Health Care
§ 1.05 Nursing Staff
§ 1.06 Health Care Fraud
[1] Self-Referrals
[2] Kickbacks and False Claims
§ 1.07 Malpractice Information Available to the Public
[1] Physician Profiles
[2] Hospital Report Cards
[3] Other Provisions

CHAPTER 2
Immunity

§ 2.01 In General
§ 2.02 Governmental Immunity
[1] In General
§ 2.03 Federal Immunity
[1] Federal Tort Claims Act
§ 2.04 State Immunity
[1] Statutory Limitations
[2] “Sue or be Sued” Provisions
[3] Government-Proprietary Test
§ 2.05 Immunity of State Political Subdivisions
[1] Statutory Constraints
[2] “Sue or be Sued” Provisions
[3] Discretionary Function
[4] Monetary Limits
[5] Governmental-Proprietary Test
§ 2.06 Charitable Immunity
[1] Historical Perspective
[2] Rationale for Immunity Rule
[3] Exceptions to Immunity
[4] Current Status of Charitable Immunity
§ 2.07 Conclusion

CHAPTER 3
Hospital Tortious Liability

§ 3.01 Introduction
§ 3.02 Vicarious Liability
[1] The Hospital Exception
[2] The Hospital Exception Rejected
[3] The Private Attending Physician
[4] The HMO Physician
§ 3.03 The Corporate Negligence Doctrine
[1] Darling v. Charleston Memorial Hospital
[2] Bestowal and Revocation of Staff Privileges
[3] Failure to Supervise
§ 3.04 Claims for Possible Future Harm
[1] In General
[2] AIDS Phobia
§ 3.05 Conclusion

CHAPTER 4
Standard of Care

§ 4.01 Contract
§ 4.02 Standard of Reasonable Care and Skill
[1] In General
[2] Simple Negligence vs. Malpractice
[3] Locality Rule
[4] Same or Similar Community Rule
[5] National Standard
[6] Ad Hoc Approach
§ 4.03 Evidence of Standards of Care
[1] Expert Testimony
[2] Voluntarily Assumed Standards
[3] Res Ipsa Loquitur
§ 4.04 Hospital Obligation to Patients
[1] Following Orders
[2] Independent Duty
§ 4.05 The Patient’s Right to Dignity
[1] Mentally Ill Persons
[2] Terminal Patients

CHAPTER 5
Hospital Professional Liability Insurance

§ 5.01 Standard Policies
[1] In General
[2] Coverage
[3] “Claims Made” or “Occurrence” Policies
[4] Risk Placement
[5] Conditions of Coverage
[6] Duty to Defend
[7] Excess and Other Insurance
§ 5.02 Alternatives to Traditional Liability Insurance
[1] Inadequacy of Present Approach
[2] Alternatives
[3] Group Policies
[4] Tort Reform
[5] Punitive Damages

CHAPTER 6
Admission and Emergency Treatment

§ 6.01 Admission
[1] Common Law Rule
[2] The Emergency Exception to the Common Law Rule
[3] Discrimination
[4] The Admission Process
§ 6.02 Emergency Treatment
[1] Obligation to Treat
[2] Reliance
[3] JCAH Standards
[4] Hospital Liability
[5] Discrimination
[6] Alternatives to Agency Analysis
[7] Good Samaritan Legislation
§ 6.03 Ambulance Services
[1] Immunity
[2] The Emergency Treatment and Active Labor Act (EMTALA)
[3] Delays
[4] Vicarious Liability
[5] In-Hospital Patients and Third Parties
[6] Expert Testimony
[7] Discovery
§ 6.04 Interpreters
[1] In General
[2] Sign Language

CHAPTER 7
Nosocomial Infections

§ 7.01 JCAH Standards
[1] In General
[2] Multi-Disciplinary Committee
[3] Records
[4] Written Policies for Each Service
§ 7.02 Liability
[1] Duty
[2] Proximate Causation
§ 7.03 Common Problems
[1] Failure to Diagnose or Monitor
[2] Eye Infections
[3] Surgery
[4] Employee and Visitor Infection

CHAPTER 8
Equipment Related Patient Injuries

§ 8.01 Introduction
§ 8.02 Negligence and Malpractice
[1] Duty to Ensure Equipment is Reasonably Safe
[2] Duty to Provide Necessary Equipment
[3] Balancing Tests
[4] Failure to Warn and Informed Consent
[5] Failure to Test
[6] Alleviating the Burden of Providing Negligence
[7] Negligence or Malpractice
§ 8.03 The “Sale” Requirement
[1] In General
[2] Warranty
[3] Strict Liability
§ 8.04 Application of Strict and Warranty Liability to Hospitals for Defective Medical Equipment
[1] Warranty
[2] Strict Liability

CHAPTER 9
Discharge, Transfer and Referral

§ 9.01 Discharge
[1] Medically Appropriate Basis
[2] Tests
[3] Discharge Clearance
[4] Instructions
[5] Utilization Review and Eviction
[6] Against Medical Advice
[7] Missed Appointments
§ 9.02 Transfer and Referral
[1] In General
[2] Referral
[3] Physical Examination
[4] Patient’s Best Interests
[5] Procedure

CHAPTER 10
Particular Hospital Services

§ 10.01 Blood
[1] Strict and Warranty Liability
[2] Rationale
[3] Cunningham v. MacNeal Memorial Hospital
[4] Negligence
[5] Blood Bank
[6] Availability
[7] Incompatibility
[8] Acquired Immune Deficiency Syndrome (AIDS)
[9] Intraoperative Autologous Transfusions
[10] Umbilical Cord Blood
[11] Conclusion
§ 10.02 Radiology
[1] Slip and Fall Litigation
[2] Hospital Responsibility for Radiologist
[3] Radiation Diagnostics and Therapy
[4] Negligence
[5] Radiology Record Retention
§ 10.03 Anesthesia
[1] Hospital Responsibility
[2] General Anesthesia
[3] Spinal Anesthesia
§ 10.04 Obstetrical Suite
[1] Facilities
[2] Deviations from Accepted Obstetrical Standards
[3] Delayed Caesarean Section
[4] Attendance at Delivery
§ 10.05 Surgery
[1] Vicarious Liability—“Captain of the Ship”
[2] Direct Liability
§ 10.06 Autopsy and Donation
[1] Autopsy
[2] Donation
[3] Transplants
§ 10.07 Psychiatric Services
[1] Escape by a Patient
[2] Self-Inflicted Injuries
[3] Liability to Third Parties
§ 10.08 Medication
§ 10.09 Corpses
§ 10.10 Pain Relief Management
[1] Philosophical Background
[2] Federal
[3] State

CHAPTER 11
Nursing

§ 11.01 Nursing Professionalism and Its Legal Implications
[1] Subservient Status
[2] Negligence Standard
[3] Changed Roles
[4] Communications
§ 11.02 Malpractice Litigation
[1] In General
[2] Ministerial vs. Professional Judgments
[3] Standard of Care
[4] Expert Testimony
[5] Statute of Limitations
§ 11.03 The Realities of Nursing Practice
§ 11.04 Nursing Duties
[1] Following Orders
[2] Observation and Consultation
[3] Injections and Unsterile Equipment
[4] Operating Room

CHAPTER 11A
The Hospital Pharmacy

§ 11A.01 Introduction
§ 11A.02 Ownership and Location of a Pharmacy Within a Hospital
§ 11A.03 Regulations
[1] Conditions of Participation in Medicare Programs
[2] State Boards of Pharmacy
[3] Joint Commission on Accreditation of Healthcare Organizations
[4] Controlled Substances
§ 11A.04 Pharmacy Recordkeeping
§ 11A.05 Pharmacy Personnel
[1] Non-Pharmacists
[2] Pharmacy Residents
§ 11A.06 Manufacture and Marketing
§ 11A.07 Learned Intermediary
§ 11A.08 Medication Errors
§ 11A.09 Use of Experimental Drugs Under Investigation
§ 11A.10 Authority of Non-Physicians to Prescribe Medications
[1] Physician’s Assistants
[2] Nurse Practitioners or Clinical Nurse Specialists
[3] Optometrists
[4] Certified Nurse Midwives
§ 11A.11 The Future of the Hospital Pharmacy
[1] Introduction
[2] Quality of Care
[3] Cost Containment

CHAPTER 12
Informed Consent

§ 12.01 Introduction
§ 12.02 Self-Determination vs. Medical Paternalism
[1] Theoretical Basis
[2] The Medical Tradition
[3] The Legal Tradition
§ 12.03 Battery or Negligence?
§ 12.04 The Modern Era
§ 12.05 Scope of Disclosure
[1] Professional Standard vs. Lay Standard
[2] Breast Cancer Informed Consent Statutes
§ 12.06 Proximate Causation
§ 12.07 Exceptions to Informed Consent
[1] Consent Implied in Fact
[2] Consent Implied in Law
[3] Excused Absence of Consent
[4] Emancipated Minor
§ 12.08 Hospital Responsibility

CHAPTER 13
Refusal of Treatment

§ 13.01 The Right of a Competent Adult to Refuse Treatment
[1] General Acceptance
[2] State Interests
[3] Informed Refusal
§ 13.02 Foregoing Life-Sustaining Treatment for Incompetents
[1] The Right to Death
[2] Incompetency
[3] Surrogate Decision-Making Standards
§ 13.03 Nutrition and Hydration
[1] In General
[2] The Act/Omission Distinction
[3] Ordinary/Extraordinary Distinction
§ 13.04 Decision-Making Process
[1] Advance Directives
[2] Family and Physician
[3] Hospital Role
§ 13.05 Assisted Suicide
§ 13.06 Pain Relief Management
[1] Philosophical Background
[2] Federal
[3] State

CHAPTER 14
Patient Medical Records

§ 14.01 Patient Medical Records
[1] Maintenance Requirements
[2] Government Requirements
[3] Categories
[4] Authorized Entries
[5] Counter Signature
§ 14.02 Retention of Records
[1] Amorphous Standard of Retention
[2] Applicable State Statutes and Regulations
[3] Federal Regulation
[4] Statute of Limitations
[5] Uniform Act
§ 14.03 Particular Records
[1] Admission Record
[2] Patient’s Medical History
[3] Physical Examination
[4] Order Sheet
[5] Clinical Record
[6] Testing and Procedure Reports
[7] Evidence of Informed Consent
[8] Discharge Summary
§ 14.04 Confidentiality and the Patient Hospital Record
[1] Ethical Principle
[2] Legal Principle
[3] Health Insurance Portability and Accountability Act (HIPAA)
§ 14.05 Waiver of Confidentiality
[1] Non-Confidential Information
[2] Placing Medical Condition in Controversy
[3] Analysis of Which Issues Are in Controversy
[4] Child Custody Cases
[5] Authorizations
[6] Ex Parte Interviews
[7] Non-Litigants
§ 14.06 Admissibility of Patient Hospital Records
[1] Hearsay
[2] Business Record Exception
[3] Admission Against Interest
§ 14.07 Incident Reports
[1] Risk Management and Incrimination
[2] Discovery
[3] Admissibility
§ 14.08 Liability Consequences
[1] In General
[2] Negative Observations
[3] Proximate Causation
[4] Alterations
[5] Unauthorized Release
[6] Subpoenas

CHAPTER 15
Hospital Accreditation

§ 15.01 Joint Commission on Accreditation of Hospitals
[1] History
[2] Hill-Burton and Medicare
[3] Standards
[4] Accreditation
[5] JCAH Records
[6] Reform
§ 15.02 Review Organizations
[1] PSRO
[2] PRO
[2A] PSO
[3] Hospital Review Committees

CHAPTER 16
Hospital Liability for Employment Law Violations

§ 16.01 Americans With Disabilities Act
[1] Overview of the Act
[2] Scope of Coverage Under Title I of ADA
[3] Prohibited Conduct Under Title I of the ADA
[4] Defenses
§ 16.02 Sexual Harassment
[1] Introduction
[2] Legal Principles
[3] Suggestions for Prevention
§ 16.03 Retaliatory Discharge

[1] Whistleblower Suits
[2] Church Amendment

CHAPTER 17
HMO Liability for Medical Malpractice

§ 17.01 Introduction
§ 17.02 Types of Managed Care Arrangements
[1] In General
[2] Fiduciary Duty and Jurisdiction
§ 17.03 ERISA and the Preemption Issue
[1] Preemption in General
[2] The Controversy Over Preemption
§ 17.04 Theories of Liability
[1] Respondeat Superior
[2] Ostensible Agency
[3] Corporate Negligence
[4] Negligent Selection of Participating Physicians
[5] Negligent Utilization Review
[6] Express or Implied Warranty
[7] Breach of Contract
[8] The Federal False Claims Act

CHAPTER 17A
Telemedicine

§ 17A.01 Introduction
§ 17A.02 Physician Licensing
§ 17A.03 Privacy
§ 17A.04 Third Party Payment
§ 17A.05 Malpractice

CHAPTER 18
Environmental Hazards

§ 18.01 Introduction
§ 18.02 Definitions
[1] Solid Waste
[2] Hazardous Waste
[3] Infectious Waste
§ 18.03 Regulations
[1] Centers For Disease Control
[2] Resource Conservation and Recovery Act
[3] The Medical Waste Tracking Act
[4] CERCLA
[5] OSHA
[6] Transportation of Wastes
[7] Water Pollution Legislation
[8] Miscellaneous Federal Regulations
[9] Individual States
§ 18.04 Treatment of Medical Waste
[1] Introduction
[2] Incineration
[3] Recycling
[4] Violations

CHAPTER 19
Nonmedical Liability

§ 19.01 Premises Liability
[1] Slip and Fall
[2] Security
[3] Other Negligence Actions
§ 19.02 Bystander Actions For Emotional Distress
[1] The Physical Injury Rule
[2] Zone of Danger
[3] Misdiagnosis
[4] Labor and Delivery
§ 19.03 Consumer Fraud
§ 19.04 Kidnapping Infants
§ 19.05 Hospital Violence

CHAPTER 20
Nursing Home Liability

§ 20.01 Introduction
§ 20.02 Regulatory Framework
[1] Regulatory Assumptions
[2] Resident Assessments
[3] Quality of Care
[4] Resident Rights
[5] Facility Staffing
[6] Compliance
§ 20.03 Common Law Actions
[1] Causes of Action
[2] Arbitration and Mediation
[3] Presuit Requirements
[4] Pleading
[5] Prima Facie Case
[6] Negligence
[7] Survival Damages and Wrongful Death
[8] Sexual Assault
[9] Discovery
§ 20.04 Statutory Private Right of Action
§ 20.05 State Deceptive Trade Practice Statutes
§ 20.05 Conclusion

Glossary
Index