The supplemental materials on this page include:
- Sample medical records in McCourt v. Abernathy
- Notes about miscellaneous issues relating to sources of evidence and qualification of experts.
- Two problems to test understanding of various evidentiary and procedural issues in malpractice litigation
Notes relevant to all casebook editions
Examples of practice guidelines can be located at the National Guideline Clearinghouse, maintained by AHRQ.
Notes relevant only to softbound edition
These two problems can be used to test your understanding of various evidentiary and procedural issues in malpractice litigation.
Problem: Practice Guidelines
Jane Austere is a 62 year old female with a history of severe diabetes and high blood pressure. She lives in a small town in a rural county of a state that follows the national standard of care for specialists. Following surgery on her left knee performed under general anesthesia at the local public hospital, she was suddenly unable to speak normally. This is consistent with brain damage caused by decreased oxygen to the brain, among other possible causes. Jane brings a medical malpractice action against her anesthesiologist.
Several national organizations have issued guidelines for monitoring ventilation (breathing) during surgery. Two years before Jane's operation, the anesthesiology department at the hospital studied all these guidelines and adopted the following as its view of the best compromise among all their various nuances:
Every patient receiving general anethesia shall have the adequacy of ventilation evaluated regularly and frequently. Quantitative monitoring of the CO2 content and the volume of expired gas is encouraged, but not required. . . . These guidelines are not intended to displace the physician's discretion to conform treatment to the particular clinical circumstances of the individual patient.
Jane's anesthesiologist admits that he did not perform quantitative measures of CO2 and volume of exhaled air because he considers visual observation of breathing to be sufficient in all cases. Jane's expert testifies that she could have suffered decreased oxygen because her breathing slowed or paused for a minute or two. In his opinion, quantitative measures are advisable for a patient in Jane's condition. The hospital had recently purchased new equipment that can make these measures continuously and much less obtrusively than was the case before.
The defense lawyer tries to introduce this hospital guideline as evidence of the standard of care. What objections are likely, and what response would you make? If the guidelines were admitted, what instruction should the judge give to the jury, assuming this jurisdiction follows a national standard of care?
Review Questions: Defense Privileges
Recall the scenario in Samaritan Foundation v. Goodfarb, supra, in which nurses observed an anesthesia mishap but, two years later at trial, could not remember what they had seen. What objections could be raised when the plaintiff attempts to present the following documents to refresh their recollection, and what would the likely rulings be, if:
(a) The nurses gave statements at the time to hospital risk managers who were conducting an incident report.
(b) The nurses gave statements to a hospital quality assurance committee reviewing the anesthesiologist's performance over the past two years. What if the nurses can remember at trial what happened two years ago, but they gave statements to the hospital's credentialing committee, which was considering whether to renew the anesthesiologist's medical staff membership? Could the defense lawyer claim a peer review confidentiality privilege?