#49, 50 Handout Medicolegal Issues Concerning The Gi Tract Medicolegal Issues - Informed Consent And Power Of Attorney Britt 2019.docx

TORT LAW AND THE LAW OF MEDICAL MALP RACTICE

1. Course overview and assignments.

2. Medical Malpractice Law is a specialized.fo rm of Tort Law In ordinary negligence actio ns, a defendant is held to a standard of care whic h a reasonably prudent person would have exercised in the same or simil ar circumstances. In Medical malpractice, a physician is held to the sta ndard of care which a reasonably prudent physician would have exercised in the same or similar circu mstances. A physician owes a duty of care to the patien t to exercise that degree of skill or care generally possessed by physicians in the san1e fie ld or specialty. General principals ohort la w also control medical malpractice law.

A. Diffe rences between tort and professional liability. B. Definiti ons to be used throughout the course: Prima Facie- A case which is suffi cie nt on its face. A case where the evide nce is suffic ie nt to support but not compel a determination. Liability- Responsibili ty for condu ct. Imp oses an obligat ion upon an individual whose conduct caused damage to another. Tort- A wrong or injury result ing from a breac h of a duty resulting in damage to a plai ntiff. Departure/Deviation- An act which is inconsis tent with appropriate and accepted conduct or behavior. Res lpsa Loquitur- "The thing speaks for itself." A rule of evidence where the negligence may be infe rred from the damage. Creates a presumption of negligence. Vicariously Liability - Lia bili ty imposed on one person or entity for the acts of another. Litigation- C ivil action in which judicia l in terventio n is so ught to determine a controversy.

Deposition/Examinati o n before trial-P retria l discove ry procedure which involves a s tatement by a witness und er oath. May be oral or writ ten.

Summary Judgment- Motion made to the court by a party to determine the case only in the absence of question s of fact. (Avoids a trial in open cou1t) Voir Dire- Examination by a judge or attorney of prospective jurors top determine their qualificati ons. Can also be a hearing outsid e of the presence of the jury during a trial. Testimony- Statement w1der oath by a witness in a court or deposition . Informed Consent- Doctrine by which a physician is required to provide sufficient information to a patient so that the patient may consen t to treatment with sufficient knowledge of risks and alternatives to treatment. Proximate Cause- That which brings about particular la wsuit. An injury must be proximate ly caused by a tortiou s act. Also ca lle d Lega l Cause . Continuous treatment doctrine- Where the act or omissio n by a phys ici an occurs and the physician continues to treat the patient thus extending the period of time required to bring a medical malpractice ac tion within the Sta tute of Limitations.

C Medical Malpractice A. Elements of liab ility in a medical malpractice case. Medical malpract ice ar ise s when a phy sician departs from good and accepted practice. The plaintiff has the burden of proof and must es tablish the standard of care tlu·ough expert testim ony. The expert may also be the defendant physician.

The plaintiff also has the burden of proving that the defendant physician deviated from good and accepted practice. The deviation must be established through ex pert testimony.

The burden of proof is met by a preponderance of the evidence as opposed to criminal cases where the proof is beyond a reasonable doubt.

(I) Physician/patient relationship - the fundan1entals of the relation ship

The physician/patient relationship is a prerequis ite to a medical malpractic e ac ti o n. It must be alleged in writing in the initial complaint or the act ion w ill fail. A physicia n/ patie nt relationship gives rise to a duty upon the physician to prope rly treat the patient. The relationship does not require that the patient seek out the physician' s serv ices. An anesthesiologist or radiologis t practici ng in a hospital may have no verbal agreement with a patient but will have a duty to properly treat the patie nt. A prison or schoo l physician is required to exercise that degree of skill or care expected of a physici an in private practice. Payment or non payment by the patient does not alter the physician' s duty to the patient. -What is NOT a physician /patie nt relat ionship Physicians who perform insurance or em ployment physicals do not have a physicia n/patient relationship. Howeve r, a physicia n must do no harm to an individual in the course of the examination. The duty of the physicia n is to the company and not to the patient. (ii) Duties of a Physician -exercise of best judgme nt/ski ll A physician has an obligation to use his/her best judgement and reasona ble care in the exercise of his/her knowledge and ability. The physician must exerc ise that degree of care that a prudent physician or specia lis t would exercise under the same or similar circumstances. -use of "approved methods of care" A physician may use any one of 2 or more medically acceptable modalities of treatm ent, provided there is some reputable support in the professio n. (Surgery vs. Conservative care) (Toth v Community Hosp at Glen Cove, 22 N.Y.2d 255(1968)) Since medicine is not an exact scie nce and where there may be an issue between experts as to what procedure is to be done in a given situation, a physician may exercise his best judgment in determining which procedure may be used. A physician must be able to demonstrate a medically acceptable basis for dec idin g upon the

appropriate method of treatment. An error in judgement, by itself, does not constitut e medical malpractice.

The Specialist vs. The Average Physician The standard to which a physician is held is based upon the degree of knowledge , skill and expertise of the average physician or specialist in the community. Since a physician who renders medical se rvic es is required to possess that degree of skill possessed by other physicians of similar training, a general practitioner cannot be held to the same standard as a speciali st suc h as an o rthopedis t or urologist unless he/she holds herself/him self out to be trained in that area of practice. -The standards of care as determined by an expe rt

A jury is not equipped to determine a deviation from good and accepted practice based upon their own knowledge. The trial court determines an expert witness' qualifi cat ion. Any physician may testify as an ex pert in any field of med icine eve n if untrained in that field. (Some states such as Michigan disagree) The jury determines if the expert's testimon y has credibility and sufficient weight in any particip a nt' s favor. The jury may reject the expert' s opinion. "Localit y" of an expert is no longer an impediment to an expert's testimony.

(iii) The "departure" or "deviation" (See elem ents of prima facie case) -deviation form good and accepted practice -ex p ert must establish the standard of care -elements of proof -the preponderance of the evidence

(iv) Proximate Cause -the act or omission must be the proximate cause and a substantial fac tor in bringing about the inju ry. To estab lish proximate cause the plainti ff must prove that the deviation from good and accepted care was the cause of the plaintiffs injmi es. Mere evidence of a departure is insuf ficient to es tablis h a causal co1mec tion to the inju ry.

A finding of proximate cause must be based upon competent evidence and not speculation. Where a patient was already suffering an injury, an exacerbation must be proven to be proximately cause d by a departure by the physician. Plaintiff is not required to demonstrate to an absolu te certainty that the patient would not have suffe red an injury ifthere was proper treatment. Only a reasonable probability is required. In wrongful death actions, the courts have held that the proximate cause test is satisfied if there was a substantial poss ibility that the pla in tiff would have recovered but fo r the malpractice. Even in the presence of a departure. where proximate cause is not proven, the plaintiff s case may be dismissed. -direct proximate cause is establis hed by a phys ici an qualified as an expert -where there are 2 or more causes of an injury -eleme nts of proof -no case if proximate cause not proved

(v) Injury and damage

The final element in a prima facie case must be proven by the plaintiff - proof of inju ry Must be established by physician expert testimony

A plaintiff s injuries must be specified in a bill of particulars to avoid surprise at the time of trial (not tru e in a ll states or in Federal Cou1i)

A plaintiff cannot recover damages caused by his or her own contributory negligence. The plaintiff had the burden of proving whic h portion of the damages was caused by the action of the physician. Damages may include loss of services, loss of consortium, loss of earnings, loss of business profits, loss of ability to enjoy life (only if the person is aware of the loss suffered), emotional distress, expenses incurred (medical, funeral, nursing, etc.), pain and suffering. Damages are awarded to restore the aggrieved party to the position he/she held prior to the injur y. Damages must have a causal relationship to the malpractice, but it can be established without medical testimony when the damage is within the experienc e and observation of the layperson. The amount of damages is determined by the jury based upon evidence because no precise rule can be formulated to measure pain and suffering.

Medical Records Medical records are a measure of proof which may be submitted to a jury to determine physician injury or damage. The physical exan1ining physician testifies as to objective findings and such testimon y is given to the jury to give it the consideration it deems appropriate. The expert physician testifies as to opinionevide nce whic h is also submitted to the jury on the iss ue of the proximate cause of the damage. -Wrongful death action The measure of damage is what the jury determines to be fair and just compensation for the pecuniary lo ss re s ulting from the decedents death to the beneficiaries of the decedent. The action is only for pecuniary loss and no award is given for sorrow, mental anguish or loss of companionship. A jury determines the value by taking into consideration the decedent' s character, habits and ability, circumstances of the wife/husband and children, services performed for the family, intellectual and physical training, guidance and assistance to children, portion of future earnings to wife/ husband and children, increase in his/her estate (inheritance), decedent's age and life expectancy, age and life expectancy of wife/ husband and children. Contributory Negligence

Plaintiff is a lso required to exercise reasona ble care for his / her own safety. There must also be a proximate cause for the plaintiffs injury. The plaintiff may not recover damages by his or her own contributory negligence. Where the plaintiffs contributory negligence is found to be the proximate cause of the damage, the complaint will be dis missed. Comparative Negligence Now governs NY Law under CPLR 1411

Comparative negligence does not bar recovery, but the amount of damages caused by the defendant shall be diminishe d in proportion to the cu lpable conduct of the plaintiff.

(iv) Res Ipsa Loquitur " The thing speaks for itself ' The doctrine of Res Ipsa Loquitur provides an indirect means of estab lishing a pr ima facie case of neg ligence. The doctrine provides proof of negligence by circum stant ial ev idence from which neg ligence is reasonably infe rred by the jury. Elements of Proof

If the instrumentality causing the injury was in the exclusive control of the defendant. The incident or event must have been of the so11 that does not ordinarily occur in the absence of neglige nce. The plaintiff did not contribute to the incident. The doctrine of Res Ipsa Loquitur will apply when a laype rson may infe r as a matter of common knowledge that the injury would not have occuITed unless the defendant was negligen t. The requisite proof of negligence is diminished since the j ury does not necessarily need the assistance of expert testimony to determine negl igence. Coupled with expert tes timony, a jury may infe r that an event cou ld not have occurred without

the neg ligence of the defendant. Case Examples: Forceps, instruments and sponges lef t in patient after surgery; Anesthesia, drug cases, incorr ect diagnos is and bad results do not invoke the doctrine since the inference of negligence is n o t necessar ily within the common knowledge of the jury. His torical Significance The doctrine is a compara tive ly rece nt development in malpractice cases. At one time, it was impossible for a plaintiff to establish negligence because physicians refused to testify against one another. Where a layperson would be expecte d to understand that certain events occur only in the presence of neg ligence, the courts have held that the physician has the burden of explaining the event in order to overcome the inference of negligence. (vii) Statute of Limitations -application to professional liability The time of filing an action runs when the allege d act of negligence accrues. Time to file a medical malpractice action varies from state to state a does the time from which the Statute of Limitation runs. ln New York State, the Statute of Limitation is 2 and ½ years. The usual accrual time for various statutes is when: I . T h e time the medical malp ractice occ urred. 2. The time it was discovered or sho uld have been discovered. 3. The time when the physician/ patient relationship or treatment ended. In NY there are 2 situations where the statute of limitation begins to run after the alleged medical malpractice. I. . Where there is continuous treatment. 2. When there is foreign object in the body.

-Continuou s Treatment Doctrine Applica ble where the act or omission occurs and the physician continues to treat the patient for the same illness, disorder or condition. In this case the statute begins to run from the las t t rea tment even if there is no further malpractice. Whether each visit to the physic ian by the patient was discrete and comp lete and not continuous is a question of fact for the jury. The patient remains under the continuous treatment of a physician between the time of the last vis it a nd the anticipated next vis it which is one fo r the ongoing treatmen t of the same or related condition. The origi nal purpose of the con tinuous treatment doctrine is to protect the patient from having to choose between a medica l malpractice laws uit and continuing to receive treatment from his or her physician. The court must focus on whether or not the patient had a continuing trust in the physician with respect to treatment. Mail and telepho ne contacts are insufficient to support the requireme nts of the period of continuous treatment. The refill of a prescription does not invoke the continuou s treatment doctrine. (viii) Vicarious Liability A defendant physician is not liab le fo r the neg lige nt acts of other physicians unless he/s he has legal or supervisory control over the acts of that physician. A physician my be liabl e for hiring inco mpetent emplo yees. _Hospital A hospital may be liabl e fo r the acts of its independent contractor physicals if the patient does not control the choice of physician upon entering the hospital. (Emergency room physical, anesthesiologist, on call a ttending, etc) Physician and Staff An employer is not responsible for th e acts of his/her employees unless the e mployee ' s act is in furtherance of the employers business and wit hin the ambit of the em ployee ' s authority. (The employer is not required to authorize the specific act) Employer' s liability rests upon the doctrine of respondiat superior. Partners hip

A partnership is a contract by which there is a mutual promise to share in the profits or losses of a business. A partner has the authority to bind the partnership in any act in furtherance of partnership business. General paitners are personally and indi viduall y liable for all obligations of the pattnership. Each partner is jointly and severally liab le for the acts committed by their partnership. -Corporati on A professional corporation does not insulate the physician from personal liabili ty. An emplo yee physician of a corporation is not responsible for the acts of another employee physician in the same corporation. (But see Hosp Liability) (ix) Informed consent ( Unauthorized treatment) At one time unauthorize d treatment was considered battery. -Public Health Law 2805-d

1. Lack of informed consent means the failure of a person providing professional treatment or diagnosis tp disclose the reaso na ble risks or alteratives which a reasonable practitioner would have disclosed under the same or similar circumstances. 2. Involves non -emergency situations. 3. Must be established that a reasonably prudent person in the patient' s position would have NOT w1dergone the procedure or treatment if he/she was folly infonned and that the lack of info rmed consent was the proximate cause of the injury . -Failure to disclose to the patient the risks and alternatives Plaintiff has burden of proof on 3 iss ues:

1. The physici an failed to disclose to the patient the reasonably foreseeable ris ks of the procedure. 2. Patient must prove that a reasonable person in the plaintiffs condition would not have undergon e the procedure. 3. The lack of informed consent was the proximate cause of the inj ury upon which recovery is so ugh t.

The elements of an action of lack of informed consent must be pleaded separately from an action based upon medical malpractice or the cause of action will be dismissed. Good medical judgment may dictate that information concerning risks may be detrimental to the patient's health. It is no defense that the procedure performed was medically appropriate. Consent by the patient must be based upon adequate information. Patient may reject information concerning risks and alternatives and, therefore, disclosure is not required. Expert Testimony Expert testimony is required to make a prima facie case as to the adequacy of the informed consent The issue to be determined through expert testimony is the reasonableness of the physicians divulgence in terms of what he/she knows or should know to provide proper and appropriate information to the pt Disclosure is not required if the risk is too commonly known to warrant disclosure or the patient assured the practitioner that the patient would undergo the procedure regardless of the risk. Disclosure to the patient is not required if the patient was unable to consent or if the information would adversely affect t e patient. Hospitals will cancel surgery even if the patient is scheduled and even under anesthesia. How do you protect yourself? I. Realize that you cannot delegate this responsibility to anyone but yourself. - do not assume the hospital will tell the patient about risks or alternatives. -do not assume that your office staff will do an adequate job.

-Never let a non medical employee get involved in any aspect of consent other than as a witness. 2 Assess the patient - can they handle the information -what is their medical status -spouse or other family member should not consent if the patient is competent --is patient sedated or under other medication? .?'

3. Document everything -conversation -who was present -have witness to the signing of the consent -make sure the information is understandable to the layperson. Ex. Don't state that "your CA 125 is elevated and we will perform a bilateral oopherectomy". The patient will probably just nod and tell the court later than they were too frightened to ask the doctor to explain. - if it is a very serious condition request that the patient invite a spouse or other family member or trusted friend to be present. Patient's do not always hear you because of fear. It is helpful to have another person there to help the patient and possibly recall some of the information if necessary. Although a spouse is quite likely to experience the same fright. -If you need to explain the same thing to the patient or family member 2 or 3 times...do it!

The biggest complaint by plaintiffs is that the doctor was rushed during the explanation. Take the time to do this right. Lack of informed consent is a separate and distinct cause of action. Ex.- You are in the middle of performing a hysterectomy. The patient has consented to the surgery. You note that the appendix might present some future problem. You remove it. Problem? ,

Always remember that the patient has the right to refuse treatment. A patient has the right to withhold consent. BUT- you are responsible for the patient making an informed decision. Ex. California Case: Patient refused a pap smear and developed cancer. Physician was held liable for not advising the patient of the risks of refusal.

Elements of a Lawsuit. 1. Pleadings: Documents which apprise the parties and the court of the material elements of the lawsuit which includes the causes of action and the defense. -In a complaint which is the first pleading to be served, the plaintiff's attorney must allege a doctor/patient relationship, the elements of medical malpractice, that there was an injury and that the injury or damage was proximately caused by the medical malpractice.

- The facts alleged must entitle the plaintiff to relief under the law. - Even if the pleading is drafted poorly, the courts tend to bend over backwards to find a claim within the four comers of the document. -There may be more than one theory of recovery alleged in a pleading in the form of separate causes of action. They may be inconsistent. - The pleader must state whether the party is a corporation, partnership, municipality or other entity.. They often allege all possibilities. -A pleading is a complaint or an answer. The complaint requires an answer. Each alleged cause of action must be responded to by the party against whom it is asserted. - The answer can contain cross claims against a co defendant. - The answer may contain affirmative defenses which must be affirmatively proven by the defendant. Examples: Culpable conduct, Statute of Limitations and Lack of Capacity to Sue.

Bill of Particulars In New York State, a Bill of Particulars may be demanded and served. -The purposes of a BOP is to amplify the pleadings and prevent surprise at the time of trial. -It asserts in particularity the damages to the plaintiff. Its function is to particularize and amplify the complaint so as to advise the defendant of the specific claims.

-A BOP is served in response to a demand by the defendant. A plaintiff may object to the demand if it calls for evidentiary material. - A plaintiff may amend the BOP during the course of discovery as new information is obtained. - The BOP should contain the specific allegations of negligence, allegations of vicarious liability, violations of law and specific and special damages. Discovery 1. Gathering data and information for litigation.

- " All evidence material and necessary in the prosecution of an action regardless of the burden of proof." is the specific provision of the CPLR 3101 (a) concerning discovery and what

information may be obtained. - In a medical malpractice case, the defendants obtain almost every medical record concerning the patient's care and treatment because in a medical malpractice case the plaintiff puts his or her entire condition in issue. -Exceptions: - Absolute privilege against self incrimination, attorney client privilege, state agency documents (Psychiatric exam in connection with administrative hearing) A physician may provide through testimony an expert opinion which might be adverse to his/her own defense. - Attorney Work Product- Materials made or produced by the attorney for one of the parties such as file briefs, memos and notes. The attorney must be the one who prepared the document. An agent, expert witness or insurance company may not have the same privilege. (Report of examiner, claims adjuster, witness statement or expert report) - Matters which are usually privileged but under certain circumstances must be disclosed. Example: Insurance company file containing a statement by insured provided before insured died and the statement was the only proof of the event or occurrence. Examination Before Trial (EBT or deposition) oral deposition - Upon proper notice on the individual or attorney for a particular party, a deposition is obtained. -All parties to the action must be present. -A deposition may be held prior to a suit under certain conditions and is limited by the provisions of the CPLR. -A deposition is usually taken before a court reporter who is a notary and will swear the witness. - Oral questions are asked of the party being questioned. The answers are provided under oath. -Objections may be made but it is usually agreed to by the attorney to reserve all objections for trial except as to form and privilege. In other words, a "hearsay" objection is reserved for trial (and is not waived) but a badly developed question may be objected to on the grounds of"form". -There a differences in State and Federal Court. A palpably improper question in State court may not have to be answered but in Federal Court the witness must answer and an objection is made on the record.

- A witness will receive the deposition transcript and may make corrections. These corrections are also under oath. Pumoses of the EBT

a) The use of the deposition is to gather facts and data by thorough questioning of the witness. b) Since all the answers are given under oath, the deposition may be used to impeach the witness if the trial testimony is inconsistent with the deposition testimony. c) A witness is "locked in" to deposition testimony and may severely compromise a case if the statements made under oath are inconsistent. d) The witness does not have to be a party to the lawsuit to testify at the deposition. A physician may be called to testify at a deposition because of the involvement with a patient or as a witness to an event. In Federal Court a physician may testify as an expert witness for which the witness is paid for his or her time.

Preparation of the Witness to be Examined.

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A witness must be prepared to always tell the truth in response to questions posed.

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Each question must be carefully evaluated by the witness before answering it.

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The witness should give the attorney representing him or her a few seconds to object if appropriate before answering.

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Information should never be volunteered. The witness should only answer the question posed and provide no additional information.

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Avoid the desire to "educate" the opposing attorney in the hope that the attorney will see the light and drop the suit.

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Do not be afraid to state that you do not recall or that you do not know.

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Never guess, speculate or fill in gaps of missing information.

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Do not lose temper.

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Ask to see your attorney outside the examination room if you have any questions. You are entitled to counsel at all times.

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Do not argue with opposing attorney. Do not get nasty with the opposing attorney.

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Do not engage in any offensive behavior in response to a question.

What the La:wyer Learns from the Deposition -The attorney determines and assesses the witness' ability to testify and how the testimony will come across at the time of trial. If the witness appeared to be extremely angry during the questioning, this may mean that the witness will not make a favorable appearance in front of the jury. The witness has the potential to lose control. If the witness appears to be frightened, a jury might interpret such behavior as guilty or remorseful. Arrogance is never advisable at a deposition and serves to please the opposing party since most jurors do not like arrogance in any form. _ The attorney gets to learn the theory of the case from hearing the type and focus of the questions.

- The attorney is learning facts about the case.

Documentmy Materials - The Office Record a) you are required by law to maintain records concerning your care and treatment of each patient. b)Contained in the record must be data concerning the patient's history, family history, chief complaints, present illnesses if any, physical examination findings, diagnostic laboratory results, x-ray findings, consultations etc. Omission of any material observations or test results may constitute a deviation from good and accepted care.

c) The medical office record is essential to the defense of the physician. Failure to maintain proper records for each patient may result in penalties for statutory violations, as well as damage to the defense of a malpractice case.

d) Patient's failure to appear at scheduled appointments should be documented in patient's record. Patients should be contacted for follow up visits where appropriate and any contacts for follow up visits should be entered into the chart. e) Where a patient is not compliant with treatment and office visits, all attempts made to encourage patient's compliance should be entered in the chart. If appropriate, a correspondence should be sent to the patient urging the patient to seek and comply with treatment recommendations. A copy of any correspondence should be maintained in the patient's chart. f) If subpoenaed for an EBT or trial a chart must be maintained in a separate place from the usual file area which is preferably locked and inaccessible to anyone but authorized staff.

The Hospital Record a) Maintenance of hospital records in most states is governed by statute. b) The Joint Commission requires proper maintenance of records as a criteria for accreditation. c) Most hospitals establish its own policy of retaining records where there are no statutory requirements. Records may be maintained for medical or research needs as well as for defense of medical·malpractice actions. In cases where the research is ongoing, retention of records may long exceed the statutory requirements. d) A hospital record is a business record which is discoverable and admissible as evidence in a medical malpractice action. e) Entries by authorized persons must be complete, clear and accurate. f) Failure to enter complete, clear and accurate notes on a patient's chart may result in the destruction of the credibility of the entire record as well as a violation of the applicable statutes.

g) Medicare, risk managers and some insurance carriers require evidence of supervision of house staff physicians by attendings. Accordingly, attendings countersign house staff entries.

h) Medical student entries should also be countersigned by a licensed physician who is an attending or resident physician. i) An error in a record ( office or hospital) must never be altered, erased or obliterated.

j) An error may be corrected by a single line through the error and a new entry written as close to the error as possible.

k) Addendums written on different occasions may be added but must be dated contemporaneously with the writing. Never insert an undated addendum into a chart entry.

1) Some states call for revocation of medical license for falsification of medical records. m) Confidentiality of patient records in a hospital must be maintained at all times.

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n) Patients may have access to the information contained in the records through various methods and with some exceptions ( Mental health, drug abuse and qualification by statute).

o) Unauthorized record disclosure may result in hospital or physician liability.

p) The medical record is "owned" by the physician or the hospital, but the information contained therein is subject to patient access.

q) In a medical malpractice action, a plaintiff puts his or her entire condition in issue. All parties are permitted access to the records pursuant to duly executed authorizations by the plaintiff.

ANATOMY OF A TRIAL

Jury Selection

A) The Voir Dire ( questioning of jurors) - The purpose is to determine the potential juror's attitudes and feelings about the case, expose the jurors to the basic facts of the case and to educate them about the respective positions of the parties.

- Jurors are asked about their education, employment, family, prior experiences as a juror or litigant and attitudes about the facts in the case. B) Jury view towards physicians and its application to the case. - Jurors are questioned concerning the feelings towards physicians, hospitals and health care. - Any bad or unpleasant experiences with a physician is revealed in an effort to avoid bias. - Jurors are questioned concerning their views towards awards and compensation for plaintiffs who claim damages. Attorneys are concerned with a potential juror's attitude toward excessive awards or no award for plaintiff.

OPENING STATEMENT A) Road map of the case - The opening statement is the first formal address to the jury by the attorneys. - The attorney during the opening statement describes what he/she expects to prove during the trial. -The plaintiff has the burden of proof and gives the first opening statement. B) What will be proven by the attorneys -At the time of the opening statement, the jury has not yet heard any evidence

- Attorneys may not state any facts as true since evidence has not yet been presented. - The opening statement will provide an opportunity for the attorney to pave the way for a particular witness or address a particular theory of the case to be presented by the opposition.

- This part of the trial presents an opportunity to explain the medicine in clear and concise language so that the jury will understand. C) Promise to the Jury

-The opening statement is actually a "promise" by the attorney to prove certain facts. If an attorney is not able to prove that promise, his/her credibility is destroyed and the case may be compromised.

- The opposing attorney may comment at the end of the trial during the summation that the attorney breached the promise to prove certain facts.

DIRECT AND CROSS EXAMINATION

-The direct examination is a method used to provide relevant information to the jury through witness testimony.

- The "story" is told through the testimony of the witness by way of carefully constructed questions asked by the attorneys. The questions to be used are determined by the ability, appearance and the role in the fact pattern of the witness.

- Careful preparation of the witness is essential to an effective direct examination. - Leading questions are not permitted except as provided by the Rules of Evidence or in preliminary matters. Hostile witnesses are also an exception and leading questions of permissible. - Cross examination is used in questioning adverse witnesses or the opposing party. - It is a technique used to attack the credibility of a witness or reduce the impact of the direct examination. - Cross examination must be within the scope of direct examination unless the court permits

otherwise in its discretion. - The attack on credibility involves bias, personal interest, experience, qualifications, memory and monetary motive. - An expert witness is questioned concerning fees, experience as an expert, bias to one type of party (plaintiff or defendant), lack of information, lack of experience, authoritative texts or treatises, and basis for opinion. - The witness on cross-examination should never be permitted to explain an answer or reiterate his/her testimony on direct.

A.

Parties and Witnesses. (In class discussion)

B.

Differences between cross and direct and what they accomplish. A direct examination permits the witness to tell the"story". The crossexamination permits the examiner to tell the "story". Cross-examination is usually more vigorous than direct examination and is an effective way for the jury to evaluate a witness.

C.

Witness behavior, attorney behavior. Witness musts be thoroughly prepared for the cross-examination. Witness should be advised of the anticipated content of the cross-examination. All weaknesses in the case should be thoroughly developed with the witness prior to the trial. This will avoid the witness' inability to explain his/her position during the crossexamination. An attorney should not utilize cross-examination to abuse or harass a witness.

Innuendo and speculation about a witness' character is improper unless the facts about the witness, if relevant, can be proved. IV.

Admissible Evidence Evidence is a means by which the truth of a fact is proved or disproved. All relevant, competent and material evidence is admissible and is to be weighed and considered by the court or jury unless the proposed evidence is to be excluded by a rule or statute. For evidence to be material, it must concern a matter in issue. If it does not

concern a matter in issue, it is considered to be immaterial and may be excluded. For evidence to be relevant, it must have a tendency to prove the existence of a material fact and if admitted would render the existence of that fact more probable to a finder of the fact (court or jury). Competent evidence is evidence which is not subject to exclusion, such as the competency of an expert witness to testify. A.

The Testimony. Testimony is evidence introduced to prove or disprove a fact or set of facts. A witness is permitted to testify if the witness has personal knowledge of a fact or set of facts and the ability to convey this information to the court or jury. The witness must swear that the testimony is the truth.

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If a witness is unable to swear to the truth of the testimo ny, is unable to convey the information and does not have personal knowledge of the fact or facts sought to be proven, the witness is not competent and will not be able to testify. Under the Federal Rules and New York Rules of Evidence, a child may testify at any age provided the child understands the meaning of an oath and is able to convey information concerning personal knowledge of a fact or facts. The judge preliminarily examines the child witness to determine competency prior to the child taking oath. An attorney may "voir dire" the child to demonstrate lack of competency.

The Dead Man's statute concerns testimony which involves transactions or communication between a witness and a decedent (or mentally ill person). Basically, the statute provides that a party or interested witness may not testify as to the transactions or communications of the deceased. The purpose of the statute is to prevent abuse by a person testifying as to statements or transactions made by a dead person who is unable to communicate on his/her own behalf. A witness may testify as to the transactions and statements made by a dead person if that witness has no interest in the outcome of the case. B.

The Documentary Evidence. Documentary or real evidence is physical evidence which must be demonstrated to have a connection to the case. Examples of documentary or real evidence are surgical instruments, sponges, a weapon or clothing.

There must be a proper evidentiary foundation for admission of documentary evidence before it is admitted into evidence. An evidentiary foundation may include a witness testifying that he/she identifies the object in the court as the one observed (or received) at a specific point in time and that it was in the same condition (or different condition) as when originally observed or received.

Documentary evidence may include hospital records or office records if it can establish a fact in issue. Generally, a hospital record may be admitted under the "business record" exception because the document is kept in the ordinary course of business. An office record generally requires authentication by the individual who made entries on the record or one who is familiar with that person's handwriting. It must also be established through testimony that the records was kept in the ordinary course of business.

C.

Exhibits. Demonstrative evidence can be submitted in the form of exhibits and is evidence used to illustrate a concept to the trier of fact and has no direct connection with the case. The exhibit may be a chart, an enlargement of a photograph, diagram, model or xray. All exhibits must have a proper foundation through the testimony of witnesses which includes the qualifications of the witness to testify as to the accuracy of the exhibit, familiarity with the object and whether it depicts a certain object, scene, event or set of facts.

V.

The Summation. Summation follows the presentation of all the evidence. The summation is the last opportunity for the attorney to address the jury and summarize the evidence presented and explain its significance in the case. An attorney may comment upon the evidence, credibility of the witness, and the theory of the case. The attorney argues to the jury that the evidence presented warrants a verdict in his/her client's favor.

If the opposing attorney has failed to keep his/her promise to the jury by failing to prove certain facts, it is the attorney's opportunity to point it out to the jury. Following summations, the court instructs or charges the jury with the applicable law in the case. These charges are given to the jury pursuant to a conference held by the judge and the attorneys for the parties where the requests for charges to the jury are made by attorneys. Counsel may accept or object to certain charges and the judge rules on the objections.

VI.

The Verdict. After the jury deliberates, a decision is made and the jury returns to the courtroom. An attorney may request that the jury be polled to determine if each juror supports the verdict.

A court may direct that a jury find a general or special verdict. A general verdict involves a decision by the jury in favor of one or more parties. A special verdict is directed to specific facts upon which the court determines judgment in favor of one party or another. In a medical malpractice action there must be an itemized verdict which specifies the applicable elements of special and general damage upon which the award is based and the amount assigned to each element including medical or dental expenses, loss of earning, pain and suffering. The jury also must submit the period of years over which the amounts are intended to provide compensation. Also, the jury is instructed to award the full amount of future damages without reduction to present value. CPLR4111(d). The jury will apportion damages between more than one defendant if instructed by the court to do so.

I.

Right to Confidentiality The basic elements are: (a)

Doctor-patient relationship.

(b)

Confidential information must be obtained during diagnosis and treatment from the patient, family or other practitioner.

(c)

Information must be necessary to treat the patient. (i) If a doctor notes that the patient swallowed balloons filled with cocaine and it shows up on x-ray, the privilege does not apply if doctor reports it to police (Avianca case) (ii) Statements regarding the circumstances of car accidents do not apply (if medical condition is not in issue). An eavesdropper is not subject to the privilege and may report the sum and substance of the doctor-patient discussions, provided the eavesdropper is not an agent of the doctor. Only the patient may waive the privilege. It may be waived in litigation or in a contract with an insurance company. The privilege regarding psychiatric or psychological records and testimony is waived in New York in a custody dispute because of the"best interests" of the child doctrine. The right to confidentiality pursuant to CPLR 4504 has two exceptions: (a) A dentist must disclose information to identify a patient. (b) Health care providers must disclose information that a patient under sixteen (16) years has been the victim of a crime.

A.

Do Not Resuscitate Orders. Means an order not to attempt CPR in the event a patient suffers cardiac or respiratory arrest. There is a presumption in favor of resuscitation unless there is a consent to an order not to resuscitate.

The physician ' s order for Do Not Resuscitate must be in writing. Before obtaining consent the physician must advise the person giving consent, all the information nece ssa ry for an informed consent. Each patient (adult) shall be presumed to have capa city to consent unless determined otherwise or by court order. If a patient lacks capacity to consent, the determination must be in writing and in the chart. Two physicians must make the determination and one physician must be certified or eligibl e by the American Board of Psychiatry and New-ology. The decision to consent to a Do Not Resuscitate Order by an adult patient with capacity must be obtained prior to issuing the Order. The decision to consent by the ad ult patient with capacity may be done orally in the presence of two witnesses over the age of eighteen (18) and one of the witnesses must be a physician affiliated with the hospital in which the patient is being treated. The consent must be entered in the chart. This may a lso be done in writing even prior to hospitali zation. It must also be witnessed by two individua ls who are eighteen (18) years or older. The physician must thereafter immediately issue a Do Not Resuscitate Order and infom1 the staff if the physician objects to the order. The physician must make reasonable efforts to transfer the patient to another physician.

If the patients' co nsent to the Order is qua lified, the physician must reasonably determine that such conditions exist and include the determination in the chart.

If a patient would suffer, in the physician's opinion, immediat e and severe injury from a disc ussion regarding CPR, the attending may issue a Do Not Resuscitate Order without consent but must get a written concurrence from another physician selected by th e hospital who must also evaluate the patient. Also, the physician must try to ascertain the patient' s wishes concerning Do Not Resuscitate without causing harm to the patie nt. The physician must also enter the information in the chart. The physician must obtain the conse nt of the health care proxy if one ex is ts (or a surrogate). If the conditions underlying in the physician' s eva luation concerning the patient's ability to withstand a discuss ion of CPR changes , the physician may then consult the patient. Where a patient lacks capacity, the physician must obtain the consent of a surrogate or health ca re age nt unless prior to lo s ing capacity the adult patient

/

signed a consent for Do Not Resuscitate. Where no surrogate or agent exists for an adult without capacity, the attending physician may issue an order for Do Not Resuscitate if: (a)

The physician determines that CPR would be futile.

(b)

Another physician concurs after a full evaluation of the patient.

Another method is by court order granting judgment to issue a Do Not Resuscitate Order. The patient must be advised if there is any indication that the patient can understand. If the patient objects, no Do Not Resuscitate Order will issue.

If no proxy, a surrogate my be: (a) (b) (c) (d) (e) (f)

(g)

The spouse The guardian A committee - no longer used as an entity - only guardian is appointed A son or daughter eighteen (18) years or older. A parent A sibling eighteen (18) years or older A close friend

The surrogates name must be entered in the chart. The decision by the surrogate regarding CPR is made on the basis of the surrogates's knowledge of the patient's wishes or if unknown, on the basis of the best interests of the patient. The surrogate may only act to consent to a Do Not Resuscitate Order if there has been a determination by two (2) physicians that the patient has a terminal condition, is permanently unconscious, CPR would be futile and CPR would impose an extraordinary burden on the patient. All of the foregoing must be included in the chart. A physician must determine if a minor has capacity to consent to a Do Not Resuscitate Order. The parent or guardian must also consent. If the physician is aware of a noncustodial parent who is uninformed, every effort must be made to locate the parent. If there is opposition by a parent the matter must be submitted to the dispute mediation system and no order issued.

The Do Not Resuscitate Order does not mean do not treat. It refers only to CPR. A patient, guardian, health care agent or surrogate may revoke consent at any time. The physician must immediately notify the hospital staff responsible for the patient's care of the revocation. The Do Not Resuscitate Order must be reviewed by the physician to determine if still appropriate in light of the patient's condition every seven (7) days in a hospital. In an out-patient facility, the review must be each time the physician sees the patient. In a residential facility, it must be reviewed each time the patient is seen but at least every sixty (60) days. If the physician determines that the Do Not Resuscitate Order is inappropriate because the patient has improved, the physician notifies the person who consented to the Order. If that person declines to resolve consent the physician may arrange to transfer the patient to another physician or submit to the matter to dispute mediation system. If the aforementioned conditions (terminal illness, etc.) changes or improves, the physician must notify the consenting individual, include the information on the chart and cane the Order. A transfer from another institution calls for an examination by the attending physician and then the physician may either issue an order to continue Do Not Resuscitate without further consent or cancel the Do Not Resuscitate order provided the physician notifies the consenting party. In New York all hospitals must establish a Dispute Mediation System for the purpose of mediating disputes regarding Do Not Resuscitate. Persons appointed to this committee do not have the authority to determine whether or not a Do Not Resuscitate Order should issue. (Where a person lacks capacity, the committee must include a physician eligible to provide a concurring opinion or a family member or guardian of a person with a similar mental disorder or developmental disability.) The System is authorized to mediate any dispute arising between the patient and attending physician, parent, guardian or surrogate regarding the patient's capacity or other matters. A dispute regarding Do Not Resuscitate orders does not call for the system to issue a Do Not Resuscitate order. A Do Not Resuscitate order may be revoked or not reissued until the dispute has been resolved or the mediation is concluded or if seventy two (72) hours has elapsed from submission of dispute.

The decision of a patient not to consent is not subject to judicial review. All other disputes concerning a patient and the Do Not Resuscitate order is subject to judicial review. The judicial review must take place after appropriate review by Dispute Mediation System.

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No health care practitioner in a hospital will be subject to criminal or civil liability for carrying out in good faith a decision regarding CPR in compliance with the statute. EMT's must honor non-hospital Do Not Resuscitate orders. Dispute Mediation Systems are unavailable outside a hospital. The statute requires that the patient's rights regarding Do Not Resuscitate orders be provided to patients, surrogates, health care agents, etc. at or prior to admission. IV.

The Health Care Proxy/Living Will A competent adult may appoint a health care agent by a health care proxy, signed and dated by the adult in the presence of two (2) witnesses who shall also sign the proxy. The proxy should indicate an alternative agent.

If the competent adult is unable to sign, another adult may sign at the competent adult's direction. The competent adult may not appoint a hospital employee or agent if the patient is at the hospital (unless a relative). A physician may be an agent but not the patient's attending physician. A health care agent has priority over a surrogate. The health care proxy becomes operational upon a determination of lack of capacity, with a reasonable degree of medical certainty, made by the patient's physician. When the patient regains capacity the authority of the agent ends. A hospital is not required by law to comply with an agent's request if the hospital would not ordinarily agree with the principal's wishes. The agent must make arrangements to transfer the patient to another facility or if the agent is unwilling the hospital may do so. If the transfer cannot be done, the hospital must seek judicial review or honor the agent's request. A health care proxy may be revoked by the competent adult verbally, in writing or by execution of another proxy. The physician has a duty to record the revocation and notify the hospital staff.

A failure to appoint a health care agent does not create a presumption of health care directives. There is an area of the Public Health Law concerning the rights and duties of an agent which is of concern to may health care agencies. The statute, PHL 2982, provides that the agent has the right to ascertain that if the principal' s wishes are not reasonably known and cannot with reasonable diligence be ascertained, health care decisions are made in accordance with the principal's best interests. The statute also indicates that if the principal's wishes regarding artificial nutrition and hydration are not reasonably known or cannot be ascertained, the agent shall not have the authority to make decisions regarding these measures. This appears to give some discretion to an agent to withhold or resume fluids and nutrition. It has been suggested that there be a "presumption of consent" to the administration of fluid and nutrition since removal or withholding of these measures is not medical treatment. It has also been suggested that if the discretion of the agent remains in the statute, that it be applied only to terminally ill patients who will not die of dehydration and starvation if fluid and nutrition are withheld. At least 22 states have laws which prohibit or limit denial of food and water. Approximately sixteen (16) living will laws exclude food and fluid as a type of treatment a patient could refuse. This statue has a potential for abuse and should be carefully construed to avoid the situation where a potential beneficiary to an estate accelerates the dying process to achieve personal benefit. Case law supports the patient's right to self-detennination by insuring that the proof of a patient's wishes is "clear and convincing and evidences an intent to reject life sustaining measures." Elbaum v. Grace Plaza, 544 N.Y.S.2d 840 (2nd Dept. 1989) In the absence of a health car proxy where a patient is incompetent to provide evidence of his/her wishes, the surrogate must demonstrate through testimony and other clear and convincing evidence that withholding of nutrition and hydration was what the patient expressed before being declared incompetent. Where a patient was never competent, the court in New York found that it was "unrealistic to attempt to determine whether or not the patient would have wanted life prolonging treatment." The court classified the patient as an infant and ordered the blood transfusions. (Matter of Strorar, 438 N.Y.S.2d 266,420 N.E.2d

64)

A living will is not recognized in New York as a valid instrument. However, it is evidence of an individuals wishes concerning his/her care in the event the individual becomes incompetent. A living will directs specific instructions directly to the health care provider, whereas a health care proxy authorizes an agent to provide specific instructions based upon the agent's knowledge of the principal's wishes.

VI

When to Resuscitate The accepted medical standards for the determination of when to resuscitate is based upon the presumption that the brain may be viable event if the heart stops beating. If there is no compelling medical or legal reason to withhold resuscitation, resuscitation must be commenced. The time factor in ascertaining brain death my preclude the opportunity for effective CPR. Therefore, CPR should be commenced before applying brain death criteria. The only criteria for the termination of CPR in the absence of patient directives, is cardiovascular unresponsiveness. The "DOA" in the street or the hospital emergency room presents a major problem because the physician may have to rely on a witnesses' ability to recognize cardiac arrest, to know the actual time lapse and whether or not there were other causes for the patient's condition such as drugs or extreme cold. A plaintiff's attorney would question the physician's improper reliance upon such a witness. Therefore, the physician is legally obligated to initiate CPR where reliance upon a witness' observations concerning objective signs and symptoms would be considered medically questionable.