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Preparation and Trial of Medical Malpractice Cases

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Richard E. Shandell, Patricia Smith, Fredrick A. Schulman


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The Preparation and Trial of Medical Malpractice Cases treats a case as a continuous process, from interviewing the client to closing argument. It offers comprehensive coverage of the questions surrounding health maintenance organizations, including case law on the right to sue an HMO as well as its participating physicians.

You'll find discussion of: how to recognize a meritorious case; the doctrine of alternative liability; the evidentiary value of FDA approval or non-approval; the continuing treatment doctrine; state statutes regarding motion practice; malpractice liability of alternative medical practitioners; the admissibility of evidence comparing physicians' risk statistics to those of other physicians; use of expert testimony to establish res ipsa loquitur in negligence; the modified standard of proximate cause when a physician's negligence exacerbates a patient's existing condition; violation of the duty to disclose information; contributory negligence in informed consent; distinguishing between medical malpractice and ordinary negligence; liability of nurses; and more. Appendices demonstrate how to analyze a medical brief, depose and examine the defendant physician, and elicit testimony from your own expert witness. Also included are a sample Bill of Particulars, a sample jury charge and a list of Web sites to assist your medical research.

Book #00564; looseleaf, one volume, 754 pages; revised edition published in 1990, updated as needed; no additional charge for updates during your subscription. Looseleaf print subscribers receive supplements. The online edition is updated automatically. ISBN: 978-1-58852-008-1


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  • Availability: Available
  • Brand: Law Journal Press
  • Product Type: Books
  • Edition: 0
  • Page Count: 754
  • ISBN: 978-1-58852-008-1
  • Pub#/SKU#: 564
  • Volume(s): 1

Author Image
  • Richard E. Shandell
Richard E. Shandell was for many years the senior partner of the law firm Shandell, Blitz, Blitz & Ashley, LLP and is located in the New York office. He is the past President of the New York State Trial Lawyers Association and serves as a Dean of the New York State Trial Lawyers Institute. He is a graduate of the University of Pennsylvania and Columbia Law School.


Author Image
  • Patricia Smith
Ms. Smith (deceased) was a member of the New York State Bar.


Author Image
Fredrick A. Schulman, Esq., is the founding partner of the New York City law firm Schulman Blitz, LLP. He has successfully litigated hundreds of complex medical malpractice cases. He is a cum laude graduate of the State University of New York at Binghamton and Brooklyn Law School. Mr. Schulman is admitted to practice in the courts in the State of New York, as well as in the United States District Court for the Southern and Eastern Districts of New York. He is a member of the American Association for Justice, the New York State Trial Lawyers Association, the New York State Bar Association and the New York County Lawyers Association.

PART I
Ascertaining a Medical Malpractice Claim


CHAPTER 1
Elements of a Cause of Action

§ 1.01 General Elements
[1] Duty
[2] Standard of Care
[3] Proximate Cause
[4] Damages
§ 1.02 The Physician’s Liability to Third Parties
[1] In General
[2] Communicable Diseases
[3] Psychiatric Patients
[4] Automobile Accidents
[5] Organ Donations
[6] Caretakers
[7] Refusal of Hospitalization
[8] Hereditary Diseases
[9] Other Physicians Relying on Diagnosis
§ 1.03 Wrongful Birth and Wrongful Life
[1] Wrongful Diagnosis
[2] Wrongful Pregnancy
[3] Wrongful Birth
[4] Wrongful Life
[5] Prenatal Injuries
[6]  Wrongful Sterilization; Loss of Offspring
[7] Preconception Torts
§ 1.04 Acquired Immunodeficiency Syndrome (AIDS)
[1] Introduction
[2] Statute of Limitations
[3] Confidentiality
[4] Infection
[5] Duty to Treat
§ 1.05 Negligent Infliction of Emotional Distress in the Medical Malpractice Context
[1] Introduction
[2] Physical Injury or Impact Rule
[3] Zone of Danger
[4] Foreseeability
[5] Misdiagnosis
[6] AIDS
[7] Labor and Delivery
§ 1.06 Other Particular Theories of Recovery
[1] Abandonment
[2] Strict Products Liability
[3] Fraud
[4] Breach of Contract
[5] Wrongful Living (Denial of Right to Die)
[6] Battery
§ 1.07 Countersuits

CHAPTER 2
The Initial Evaluation

§ 2.01 Interviewing the Client
§ 2.02 The Damage Threshold
[1] Statutory Limitations—Tort Reform, The Insurance Industry and Capping Damages
[2] Evaluating Potential Damages
[3] Evaluating Liability
§ 2.03 Hints on Recognizing a Meritorious Case
[1] Surgical Cases
[2] Hospital Cases
[3] Available Medical Records
[4] Failure to Diagnose
[5] Underlying Facts and Causation
[6] Some Classic Repetitive Cases
[7] The Good Samaritan Doctrine

CHAPTER 3
Statutes of Limitations

§ 3.01 Introduction
§ 3.02 Discovery Rule
§ 3.03 Foreign Object Rule
§ 3.04 Continuing Treatment Rule
[1] In General
[2] Effect of Gap in Treatment
[3] Continuing Course of Conduct
§ 3.05 Infancy Rule
§ 3.06 Fraudulent Concealment
§ 3.07 Wrongful Death
§ 3.08 Statutes of Repose

CHAPTER 4
Informed Consent

§ 4.01 Introduction
§ 4.02 Standards Governing Extent of Disclosure
[1] Prudent Patient Rule
[2] Professional Standard of Disclosure
[3] Risks Itemized by Medical Boards
§ 4.03 Causation
[1] Introduction
[2] Objective Standard
[3] Subjective Standard
§ 4.04 Exceptions to Informed Consent
[1] Introduction
[2] Emergency Treatment
[3] Implied Consent
[4] Noninvasive or Routine Treatment
[5] Common Knowledge
[6] Physician Unaware of Risk
[7] Hospitals
[8] Referring Physician
[9] Non-Recommended Procedures
[10] Therapeutic Privilege
§ 4.05 Consent Forms
§ 4.06 State-By-State Application of the Informed Consent Doctrine

CHAPTER 5
The Initial Medical Investigation

§ 5.01 Assembling the Medical Data
§ 5.02 Understanding and Analyzing the Hospital Record
[1] Components of the Hospital Record
[2] Altered Records
[3] Emergency Room Records
[4] Labor and Delivery Records
[5] Anaesthesia Records
§ 5.03 A Basic Medical Library for the Attorney

CHAPTER 6
Res Ipsa Loquitur

§ 6.01 Definition
§ 6.02 Historical Application
§ 6.03 Rules for Application
§ 6.04 Doctrine of Alternative Liability

CHAPTER 7
Securing the Medical Expert

§ 7.01 Expert Witness Requirement
[1] In General
[2] Exceptions
§ 7.02 Qualifications of Expert
[1] Who May Testify
[2] Locality Rule
§ 7.03 Sources of Experts
§ 7.04 Disclosure of Experts

PART II
Commencing the Action


CHAPTER 8
Whom to Sue

§ 8.01 Choosing the Defendants
§ 8.02 The Hospital
[1] In General
[2] Historical Development
[3] Vicarious Liability
[4] Corporate Negligence
[5] Refusal to Treat Patient
[6] Charitable Immunity
[7] Sovereign Immunity
§ 8.03 Nurses
[1] Direct Liability
[2] Vicarious Liability of Hospital or Physician
§ 8.04 The Anesthesiologist
§ 8.05 Multiple Physicians
§ 8.06 The Surgeon as “Captain of the Ship”
§ 8.07 Municipal Hospitals
§ 8.08 The Professional Corporation
§ 8.09  Federally Funded Community Health Centers
§ 8.10 The Health Maintenance Organization (HMO)
[1] Nature of Organization
[2] Types of HMOs
[3] Theories of Liability
[4] ERISA Preemption
§ 8.11 Alternative Medicine Practitioners

CHAPTER 9
The Complaint

§ 9.01 Notice Requirements
§ 9.02 Requirements of the Complaint

CHAPTER 10
The Bill of Particulars

§ 10.01 The Role of the Bill of Particulars
§ 10.02 Requirements of the Bill of Particulars
§ 10.03 Practical Considerations in Drafting the Bill of Particulars

CHAPTER 11
Discovery and Disclosure

§ 11.01 Modern Discovery Techniques
§ 11.02 What to Discover
[1] Rules and Regulations
[2] Logs
[3] Incident Reports
[4] Reports of Evaluation and Review Committees
[5] Office Records
[6] Pathology Slides
§ 11.03 Miscellaneous Discovery Comments
[1] Physician-Patient Privilege of Other Patients
[2] Procedure
§ 11.04 The Plaintiff’s Deposition
§ 11.05 The Deposition of the Defendant Physician
[1] Potential Defenses
[2] Information to be Ascertained
[3] Smoking Out the Defense
[4] Specific Questions to be Asked
§ 11.06 Ex Parte Interviews of Treating Physicians
§ 11.07 Physical Examination

CHAPTER 12
Medical Malpractice Panels

§ 12.01 Introduction
§ 12.02 Constitutionality
§ 12.03 Practice and Procedure
[1] Condition Precedent to Litigation
[2] Composition of Panel
[3] Evidentiary Requirements
§ 12.04 Diversity Cases
§ 12.05 Tactics in Presenting Before a Panel

CHAPTER 12A
Motion Practice

§ 12A.01 Summary Judgment
§ 12A.02 Medical Malpractice Claims for Summary Judgment
[1] Liability
[2] Informed Consent
[3] Agency
[4] Statute of Limitations

PART III
The Trial


CHAPTER 13
Jury Selection

§ 13.01 Educating the Jury
§ 13.02 Composition of the Jury
§ 13.03 Purposes and Benefits of Voir Dire

CHAPTER 14
The Opening Statement

§ 14.01 Purpose
§ 14.02 Points to Emphasize

CHAPTER 15
The Order of Proof and Evidentiary Issues

§ 15.01 Presentation of Witnesses
§ 15.02 Examination of the Defendants
§ 15.03 The Plaintiff’s Expert
[1] Preparation and Examination
[2] Admissibility of Expert Testimony in the Daubert Era
§ 15.04 Presenting the Plaintiff
[1] In General
[2] Plaintiff’s Contributory or Comparative Negligence
§ 15.05 Cross Examination of the Defense Experts
§ 15.06 Evidentiary Issues
[1] Medical Literature
[2] Medical Bills
[3] Habit
[4] Hospital Rules
[5] Hospital Accreditation Standards
[6] Other Incidents
[7] Alcohol and Drug Abuse
[8] Correspondence
[9] Insurance; Financial Ability
[10] License Examination Results
[11] Comparative Risk Statistics
[12] Accident or Ambulance Reports
[13] FDA Approval
[14] Clinical Guidelines
[15] Photographs

CHAPTER 16
Summation

§ 16.01 In General
§ 16.02 Points to Remember
[1] Introduction
[2] Fair Comment On The Evidence
[3] Deductions and Inferences From the Evidence
[4] Personal Opinion
[5] Statements Regarding Standard of Care
[6] Statements Regarding Expert Witnesses
[7] Prejudice
[8] Statements Regarding Damages
[9] Arguments to Punish the Doctor

CHAPTER 17
Jury Instructions

§ 17.01 In General
§ 17.02 Specific Charges
[1] Abandonment
[2] Agency
[3] Circumstantial Evidence
[4] Contributory Negligence
[5] Damages
[6] Definitions
[7] Emergency
[8] Error in Judgment
[9] Guarantee
[10] Informed Consent
[11] Inherent Risk of Treatment
[12] Missing Evidence
[13] Proximate Cause
[14] Res Ipsa Loquitur
[15] Unavoidable Accident
[16] Unsuccessful Result

Appendices
Index