Problem 1. Dr. Williams is a board-certified internist. Since 2010, when he comp
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Question
Problem 1. Dr. Williams is a board-certified internist. Since 2010, when he completed his residency, he has had privileges at Midstate General Hospital (“MSG”), a 372-bed acute care general hospital located in Sanskrit, Arklazona. Dr. Williams is an office – based physician and is a participating physician in Wayland Medical Associates, an independent practice association consisting of 738 physicians in varied medical specialties. Dr. Williams, but not Wayland Medical Associates, has an agreement with Long Life Insurance Company to perform physical examinations on applicants for life insurance policies. A provision in the contract between Long Life and Dr. Williams calls for blood testing in every physical examination and, “where the physician deems it advisable in his sole discretion for the purpose of advising Long Life Insurance Company on the insurability of the applicant,” for “such x-ray studies as the physician shall deem necessary or appropriate.” Dr. Williams’s medical office is three blocks away from MSG. He has always conducted his physical examinations of applicants for policies of insurance from Long Life at his office. For the blood tests, he sends the applicants to Diagnostic Laboratory, a clinical laboratory under contract with Long Life to draw blood from, and to analyze the blood samples taken from, the applicants and to advise Long Life of the results. Diagnostic’s office is not at the MSG site. X-rays, when ordered by Dr. Williams for insurance examinations, are performed by Roentgen Associates, Inc., which is under contract with Long Life to take the x-rays, interpret them and send the results to Long Life. Roentgen’s radiologists provide radiologic services for MSG at the MSG site. In addition, Roentgen maintains, for ambulatory patients, a radiology facility away from the MSG site. All radiologic studies for insurance purposes are performed at the ambulatory site. Mr. Johnson is a good friend of Dr. Williams, but the only professional contact they have ever had is the performance by Dr. Williams of three insurance physical examinations on Mr. Johnson over a period of four years. Mr. Johnson has gone to Dr. Williams’s office for each of these physical examinations, none of which involved Long Life. On each occasion, while in the waiting room at Dr. Williams’s office, Mr. Johnson has seen a sign advising patients of Dr. Williams’s affiliation with Wayland Medical Associates, and he has read promotional leaflets prepared by Wayland Medical Associates and placed there by Dr. Williams, which describe the work of Wayland Medical Associates but do not include any references to performing physical examinations on applicants for life insurance policies. One morning, while walking from his medical office to MSG, Dr. Williams encounters Mr. Johnson. Mr. Johnson reveals that he has applied for a life insurance policy with Long Life and that he would like Dr. Williams to perform the physical examination. Because he is about to leave on an extended vacation, Mr. Johnson is anxious to have the physical performed as soon as possible. Dr. Williams decides that, as a favor to his friend, he will perform the physical immediately at MSG. Dr. Williams then asks Mr. Johnson to accompany him to MSG, which Mr. Johnson does. The two continue on to MSG, where the physical examination is conducted in an empty patient bedroom. However, Diagnostic Laboratory, because of high patient volume at the time, tells Dr. Williams in a telephone call that it would be better if Mr. Johnson stopped there in the afternoon, when things would have quieted down. Mr. Johnson says he cannot take the time to go to the laboratory in the afternoon. Mr. Johnson, when asked about his health history by Dr. Williams, relates that he thinks he is in excellent health. However, he says that has had what he regards as a severe cough for about a week. Dr. Williams, because of Mr. Johnson’s healthy history and healthy appearance, attributes the cough to a cold. At MSG, Dr. Williams convinces an MSG phlebotomist with whom he is friendly to draw blood from Mr. Johnson. Dr. Williams takes the vial of blood and, while driving home from his office that afternoon, drops off the vial of blood at Diagnostic Laboratories with the usual instruction to send the results to Long Life. At Diagnostic Laboratories it is discovered that, owing to a contaminant in the vial used by the OSG phlebotomist for Mr. Johnson’s blood, the blood cannot be adequately tested. Diagnostic Laboratories reports this fact to Long Life. The Long Life underwriter in charge of assessing Mr. Johnson’s insurability reads Dr. Williams’s physical examination report, which describes a generally healthy individual and makes no mention of the recent history of cough. The underwriter pays no attention to the laboratory report and recommends that the policy be issued. Long Life issues the policy. Mr. Johnson’s health deteriorates, and within six weeks he dies. The cause of death is determined at autopsy to have been a lung abscess complicated by aplastic anemia. A hematologist treating Mr. Johnson writes in the hospital record, just prior to Mr. Johnson’s death, that the aplastic anemia in all likelihood had existed for about two months. The size of the lung abscess at Mr. Johnson’s death suggests that it was present and might have been detected by x-ray at the time of the physical examination conducted by Dr. Williams. You are a lawyer. Mrs. Johnson consults you about brining a lawsuit to recover damages for her late husband’s death. You assign a lawyer in your office to investigate the case, and that lawyer uncovers all of the above – related facts. Before you confer with Mrs. Johnson, you analyze these facts. Question 1A. What do these facts tell you about the potential liability of each of Dr.Williams, Diagnostic Laboratory, MSG, and the MSG phlebotomist? Question 1B. Having analyzed these facts, you ask Mrs. Johnson to come in for a conference. What do you tell her? _____________________________________________________ . Problem 2. Since 2013 Dr.Peterson has been employed by Emergency Associates, Inc., a professional corporation supplying emergency room services to hospitals. Since 2010 Emergency Associates has had a contract (“the contract”) with MSG which requires it to “provide physician coverage on a round-the-clock basis to” MSG’s emergency room patients. Dr. Peterson became a member of MSG’s medical staff in 2013, when Emergency Associates assigned him to work at the MSG Emergency Room. In 2012 Dr. Peterson completed a 3-year residency in emergency medicine at a hospital affiliated with the University of Arklazona, and he became licensed to practice medicine in Arklazona. Immediately thereafter, he became employed by Emergency Associates. Before joining MSG’s medical staff as an emergency room physician in 2013, Dr. Peterson worked briefly in emergency rooms staffed by Emergency Associates’ physicians at two other hospitals. He passed the examination for board certification in emergency medicine on the first try in 2012. The contract requires Emergency Associates to provide “board certified emergency room physicians of unquestionable integrity and of the highest degree of competence.” Further, the contract requires Emergency Associates to “certify in writing to MSG that it has fully investigated each physician whom it proposes to employ” in OSG’s emergency room and that “each such physician has nothing in his/her background, education, training or experience which would constitute evidence that such physician is in any way incompetent to provide emergency services to” MSG’s emergency room patients. When Dr. Peterson initially applied to Emergency Associates for employment, he was in the last six months of his three – year residency in emergency medicine. During his residency, he was periodically evaluated by his superiors, each of whom prepared detailed written reports on his performance. While these reports were quite favorable to Dr. Peterson in the last year of his residency, there previously had been several unfavorable reviews. One such review, written in the beginning of Dr. Peterson’s second residency year, questioned his ability to spot fractures on x-rays and, in addition, commented that his overall knowledge of emergency medicine was so deficient that “it is at best doubtful that Dr. Peterson will ever become board certified in emergency medicine.” Emergency Associates, in assessing Dr. Peterson’s candidacy for employment, contacted the director of his residency program, who described Dr. Peterson as “a hard working, conscientious physician who builds rapport with patients and colleagues alike.” No mention of any unfavorable evaluations was made. References whose names were provided to Emergency Associates by Dr. Peterson were uniformly favorable. Emergency Associates hired Dr. Peterson. Prior to his being assigned to work in MSG’s Emergency Room, Dr. Peterson had been neither a defendant in a malpractice suit nor the target of a malpractice claim, though twice he missed rib fractures on x-rays (one at each hospital where he worked for Emergency Associates prior to becoming a member of MSG’s medical staff) and the patients in both cases had to be summoned back for further advice and treatment. When it proposed Dr. Peterson Emergency Associates to MSG for its emergency room, it did not mention the fractures to MSG. When Dr. Peterson applied for privileges in emergency medicine at MSG, the chiefs (both Emergency Associates employees) of the emergency departments at the two hospitals where Dr. Peterson had previously worked provided references to MSG. Each chief was aware of only the missed fracture at the institution where he was the chief. Each wrote a glowing recommendation to MSG on Dr. Peterson’s behalf. MSG, in assessing Peterson’s qualifications, also questioned the director of Dr. Peterson’s emergency medicine residency and received from him a report in almost the same language as Emergency Associates had received. The references supplied to MSG by persons whose names Dr. Peterson gave MSG were all favorable, and in his interview with the president of the MSG medical staff, the only interview MSG conducted, he was rated as a very knowledgeable physician. MSG granted privileges in emergency medicine to Dr. Peterson, who began working at MSG as an employee of Emergency Associates. Emergency Associates provides only physicians for the MSG emergency room. MSG provides the equipment, nurses, technicians, administrative staff and consultants (e. g., radiologists, pathologists) and, as well, the physical space within the hospital for emergency room activities. The contract provides that “all physicians employed by Emergency Associates shall be independent contractors and not hospital employees.” It further provides that “all physicians employed by Emergency Associates will, without guidance, interference or control from the hospital, have the complete and unfettered right to exercise their own professional judgment in treating all patients. The hospital shall have no right to control the medical activities of any such physician.” Nevertheless, the Chief of Emergency Services, an Emergency Associates employee, reports to the Chief of Surgery, who, with trustee approval, issues policies and protocols for the furnishing of all emergency room services. The day -to-day activities of all personnel in the emergency room are supervised and directed by the Chief of Emergency Services. Mrs. Ryan is injured in an automobile accident and brought, unconscious, to the MSG emergency room at 8 p. m. on a busy evening. Dr. Peterson sees her and, because of serious cuts, bruises, and bleeding at various places on Mrs. Ryans’s head, orders a head x – ray, which he correctly interprets as revealing multiple skull fractures. As a matter of course, Dr. Peterson orders spinal x – rays, which reveal nothing to him. He arranges for her admission to MSG as an inpatient under the care of Dr. Hoffman, a neurosurgeon. Neither Dr. Peterson nor Dr. Hoffman detects a fresh vertebral fracture which is present in Mrs. Ryan’s lumbar spine. She is treated at MSG for the head injuries. The fracture causes swelling in a disc space, and the swelling impinges on Mrs. Ryan’s spinal cord. Dr. Hoffman is unaware of this because Mrs. Ryan remains comatose for 72 hours and is unable to communicate to them her consequent loss of motor function in her legs. When she becomes cognitive, it is too late to repair the spinal cord damage. Mrs. Ryan’s legs are permanently paralyzed. Question 2A. What rights, if any, does or might Mrs. Ryan have against any person or entity? Why? On what grounds? Be specific with respect to each person or entity. Question 2B. What defensive arguments can be made on behalf of each person or entity named by you in your answer to Question 2A as being a possible defendant. Be specific as to each such person or entity. Question 2C. What would be the greatest strength in any claim made by Mrs. Ryan? Explain. Question 2D. What would be the greatest weakness in any claim made by Mrs. Ryan? Explain. Note: Do not omit possible arguments simply because you perceive them as being week. Lawyers often find that arguments they perceive as weak win cases for their clients or, sadly, for their opponents. You may however, describe them as strong or week; indeed, Questions 2C and 2D require you to identify, respectively, the strongest and weakest claims. ______________________________________________________________ Problem 3. Dr. Barnes is employed by Emergency Physicians, Inc. ("EPI"), a professional corporation that supplies all of MSG's physicians and both of OSG's physician assistants. EPI's contract with MSG requires that MSG's billing office prepare on EPI billheads, and send, all of EPI's bills for emergency room services rendered at OSG's emergency room. EPI pays MSG an annual stipend for this service. EPI's contract with MSG provides in part: "The practice of medicine by EPI's physicians shall be solely under the supervision and control of EPI, and OSG shall under no circumstance interfere with or in any other way control, attempt to control, or have the right to control professional judgments of EPI's physicians in the treatment of patients. EPI shall be solely responsible for the supervision and control of EPI's physician assistants, and MSG shall under no circumstances control, attempt to control, or have the right to control, the supervision by EPI of its physician assistants or the professional judgment of EPI's physician assistants in the treatment of patients." MSG's trustees appoint the chief of each clinical department, including Dr. Barnes, who is Chief of OSG's Department of Emergency Medicine. In this capacity he promulgates emergency room protocols and policies which cover physicians, physician assistants, and nursing staff. MSG provides the physical space for the emergency room and the emergency room equipment. MSG employs all emergency room nurses and all other non-physician and non-physician assistant personnel, such as receptionists, orderlies, etc. Radiologic assistance to the MSG emergency room is supplied by Seethrough, Inc., a professional corporation which supplies MSG with all of its radiologists. EPI’s physicians, when treating patients, wear white coats containing their names on the left breast pocket, but no other information. Mrs. Wilson is a 68-year-old lady with a history of cardiac problems who reports to the emergency room at MSG late at night with a complaint of chest pain of two hours' duration. Dr. Barnes is on duty at the time and attends to Mrs. Wilson. He orders the usual cardiac tests, all of which show no evidence of heart attack. Dr. Barnes also orders a chest x-ray, which, before discharging Mrs. Wilson from the emergency room, he interprets as normal, though he notes in the record what he believes to be an artifact (image defect caused by the x-ray process itself, having no diagnostic value) in the left lung. When Dr. Barnes discharges Mrs. Wilson from the emergency room, he advises her to follow up with her own cardiologist, a physician who is on the medical staff at a hospital other than MSG. Mrs. Wilson, pain – free after spending a night at MSG for observation, leaves MSG and consults her cardiologist, Dr. Murphy,the next day. She tells him of her overnight stay at MSG. Dr. Murphy orders a wide variety of cardiac tests over a period of four weeks. They uncover no new developments in Mrs. Wilson’s heart, and he so advises her. He takes no further diagnostic steps. At the time Mrs. Wilson was seen at MSG’s emergency room, no radiologist was on duty, though a radiologist was on call and could have viewed Mrs. Wilson’s x-ray films via a special electronic circuit, on a television set at home. MSG requires that all x-ray studies be officially interpreted by a radiologist even if a physician other than a radiologist has already interpreted the x-ray. Dr. Hammond, a radiologist, sees Mrs. Wilson's x-ray in the morning, just a few hours after her discharge from the emergency room. Dr. Hammond prepares a radiology report that calls the "artifact" seen by Dr. Barnes "a small opacity the significance of which cannot be determined." He states, "Further diagnostic measures are recommended to determine the significance, if any, of this opacity." The report is transmitted electronically to the emergency room, where it is placed with Mrs. Wilson's record but not read by anyone in the emergency room. Eight months later Mrs. Wilson is diagnosed with cancer in her left lung; she dies from the cancer six weeks after being diagnosed. Question 3A. What difficulties do you believe Mrs. Wilson's estate might have in prosecuting its case against each of the physician(s) or entity/ies identified in the factual narrative? Question 3B. If a suit is brought against EPI, Dr. Barnes, Seethrough, Inc. Dr. Hammond, Dr. Murphy, who wins and why? _____________________________________________________________________________________________________________________________________________________ Problem 4. MSG has established a number of what it calls “outreach medical offices” Throughout the State of Arklazona. The purpose of these outreach medical offices is twofold: (1) to make quality medical service available in areas away from MSG’s immediate locale, and (2) to station physicians in the areas of these outreach medical offices who, when their patients need hospital services, will send them to MSG. The plan establishing these outreach medical offices, unanimously adopted by a vote of OSG’s trustees, provides in part that “such outreach medical offices will provide care without regard to the financial ability of any patient to pay, so that all patients will have access to all needed health services.” Dr. Anderson, a board certified internist, is a member of MSG’s medical staff and has his medical office at the MSG outreach medical office in Chaucer, Arklazona, which is fifteen miles south of Sanskrit, where MSG is located. MSG provides nursing equipment and administrative support for this office. Dr. Anderson, together with all of the other physicians who staff MSG’s outreach medical offices, is employed by Outreach Physicians, Inc., a not-for-profit corporation whose three directors are the one physician member of the MSG Board of Trustees, the President of MSG, and the President of the OSG Board of Trustees. All billings for all services rendered at the Chaucer facility are done by personnel at MSG, though the billheads and reimbursement claim forms carry only the name of Outreach Physicians, Inc. as the provider of services. Dr. Anderson and the other physicians in all of MSG’s outreach medical offices are paid annual salaries. If the total received by Outreach Physicians, Inc., (or of any other of MSG’s outreach facilities) is not sufficient to pay the salaries, MSG makes up the difference by paying the amount(s) required to the outreach facility(ies) at which the total received is not enough to pay the physician’s annual salaries. Mr. Smith, who is often unemployed, has received his health care at the outreach facility for several years. Medicaid has often paid for this care. Mr. Smith has frequently been intoxicated during visits to this facility, and on some occasions, even when sober, he has insulted nurses, administrative personnel and physicians, including but not limited to Dr. Anderson, at this facility. He is universally disliked there. One afternoon Mr. Smith arrives at the outreach facility with very vague chest complaints. He is quite vigorous throughout the entire examination. Dr. Anderson performs a physical examination and electrocardiogram. While he finds nothing seriously amiss with Mr. Smith, he is concerned enough about the electrocardiogram to recommend that Mr. Smith go to MSG for further observation and testing there. Mr. Smith is agreeable to the recommendation, but his driver’s license has been suspended for drunken driving, and he cannot, therefore, drive himself to MSG. Mr. Smith owns a car, but Mrs. Smith, who is with him, has never learned to drive it and has never had a driver’s license. Dr. Anderson tells the Smiths that Outreach Physicians, Inc. is not a taxi service and cannot drive Mr. Smith to MSG. Mr. and Mrs. Smith live within five minutes’ walking distance from the outreach facility, and they walk home. Ten minutes after they leave, a nurse at Outreach Physicians, Inc. finishes his shift at the facility and tells Dr. Anderson that he is willing to drive the Smiths to MSG, which is near the nurse’s home. Mr. Smith, however, has no listed telephone number, and DR. Anderson is unable to telephone the Smiths about the nurse’s offer. The nurse, therefore, drives home without taking the Smiths to MSG. Three hour later, Mr. Smith dies of a myocardial infarction. Mrs. Smith sees an attorney and sues Dr. Anderson; Outreach Physicians, Inc., MSG, and the nurse. Question 4A. What arguments are available to Mrs. Smith with specific respect to each defendant? What is the strongest argument? Question 4B. What arguments are available to each defendant against Mrs. Smith? What is the strongest defense argument? (Again, do not omit arguments because they seem weak to you.) Question 4C. In each instance, who do you think should win and why?
Explanation / Answer
Ans:
1A. The policy was issued based on inadequate information of Mr. Johnson’s health. Dr. Williams is liable as he ignored the problem and did not advise x-ray on the applicant which could detect the problem. Diagnostic laboratory is not liable as it reported that blood could not be tested adequately because of vial containment. MSG is not liable as it is not in contractual relationship with Life Long. MSG phlebotomist is not liable as he was not aware of vial containment at the time of providing the vial.
1B. Mrs. Johnson would be told all the facts. It is the responsibility of Insurance Company to honor the claim as it has admitted the application and issued the policy. The underwriter should have taken the report of diagnostic laboratory seriously which stated that the blood could not be tested adequately, and he should have asked the applicant to give his blood sample at the laboratory and test it again. Based on the new report he should have made his decision for further examination or to accept the application.
2A. Mrs. Ryan has a right against MSG Hospital, Dr. Peterson and Dr. Hoffman. MSG is responsible as it hired a doctor with low competence who was unable to detect fractures. Dr. Peterson was unable to detect the fracture which created entire damage. Dr. Hoffman should have identified the symptoms of criticality and should have asked for further investigation on the patient including vertebral x-ray.
2B. MSG Hospital has right against Emergency Associates as it has contractual relationship with Emergency Associates to provide all emergency room services including doctor to MSG. It was responsibility of Emergency Associate to provide a doctor with clean track record and sound integrity to MSG in terms of contractual agreement. By hiding the adverse comments on Dr. Peterson, Emergency Associate has breached the contract terms. Dr. Hoffman can argue that he relied on the knowledge of Dr. Peterson and treated the patient accordingly. Dr. Peterson can argue that he acted according to his best professional judgment.
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