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Please read the attached case studies and answer the attached framework questions for a total of 10 questions. Answer don’t have to be long. APA format
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Handout: Suggested Framework for Case Analysis
1. Procedure. Who are the parties? Who brought the action? In what court did the case originate? Who
won at the trial-court level? What is the appellate history of the case?
2. Facts. What are the relevant facts as recited by this court? Are there any facts that you would like to
know but that are not revealed in the opinion?
3. Issues. What are the precise issues being litigated, as stated by the court? Do you agree with the way
the court has framed those issues?
4. Holding. What is the court’s precise holding (decision)? What is its rationale for that decision? Do you
agree with that rationale?
5. Implications. What does the case mean for healthcare today? What were its implications when the
decision was announced? How should healthcare administrators prepare to deal with these
implications? What would be different today if the case had been decided differently?
rhe Court Decides
·
· Helling v. Carey ·
83 Wash. 2d 514, 519 P.2d 981 (1974)
Hunter, J.
w find this to be a unique case. The tesU-
In [another case,] Justice [Learned] Hand
of the medical expe~ts is undisputed
stated: .
111
concerning the standards of the profession
[l]n most cases reasonable prudence is in
for the specialty of.ophthalmology. • • • The
fact common prudence; but strictly it is never
issue is whether the defendants’ compli·its measure; a whole calling may have unduly
ance with the standard of the profession ·
lagged in the adoption of new and available
of ophthalmology, which does ~ot require
devices. _
I t never may set its own tests, howthe giving of a routine pressure test to per- . ever persuasive be its usages. Courts must in
sons under 40 years of age, should insula.te the end say which is required; there are prethem from liability under the facts of this ·
cautions so imperative that even their univercase. . • •
.
. .• . .
. _.. >:… sal disregard will not excuse their omission.
[The court points to eviden,ce ,that the ‘.}
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,
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•
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[The court proceeds to review cases from
does not rise to that level.”} ·
·
. Wisconsin, California, Oregon, and Washing- .
·
· ···:..-1′
•
t’ff
cont~
ton, plus three l~gal treatises on the subject. IV. Battery or trespass. Plain 1 .
It quotes with favor the following from the
. there was also sufficient evidence~
· Restatement of Torts:}
the case to the jury on the theory 0
Chapter 6: Negligence
r trespass. In effect, she alleges she concircumstances when a doctor performs an
:ented to fusion of two vertebrae (removal
operation to which the patient has not conof only one protruded disc) thinking there
sented. When the patient gives permission to
would be a separate operation if additional
perform one type of treatment and the doctor
vertebrae had to be fused. She asserts the
performs another, the requisite element of
fact four vertebrae were fused combined with deliberate intent to deviate from the consent .
defendant’s assurances and failure to warn
given is present. However, when the patient
her of specific hazards vitiated her consent
consents to certain treatment and the doctor
and makes the paralyzed vocal chord the
. performs that treatment but an undisclosed
result of battery or trespass for which defeninherent complication with a low probability
dant is liable even without negligence. There
occurs, no intentional deviation from the
was no evidence or contention by her in the
·consent given appears; rather, the doctor in
trial court nor is there any assertion here that obtain.ing consent may have failed to meet
she would not have consented to the surgery · his due care duty to disclose pertinent inforhad she known those things she says were .
mation. In that situation the action should be
withheld from her prior to surgery.·
·
pleaded in negligence.
Defendant testified plaintiff was fully · . .. .,.: . From our approval of this analysis it
advised as to the nature of her problem and : ._ should be clear we believe the battery or
the scop~ of corrective surgery. He acknowl- ” · ‘ trespas·s theory pleaded by plaintiff in this
edges he did not advise her of the hazardof
case is limite·d in its applicability to surgery
vocal chord paralysis. ~e believed the P?S· 1/ tc>.’whichthe patient has not consented.
sibility of such occurrence was negligible and :: · There must be a substantial difference
outweighed by the danger of undue a:ppre~_ . : · between the surgery consented to and the
hension if warning of the risk was given.
·,· surgery which is done. Plaintiff asserts she
· [The court next begins a discussion of the · .· consented to·only one fusion rather than two.
distinction between consent and informecf .· . · Assuming this is true, t~e most that could
consent, quoting with approval from its own •·. ·· be argued i’s [that] the second fusion was a
landmark case Cobbs v. Grant.J, ·
battery or trespass. But she does not claim
Where a doctor obtains consent of the .
damages for a second fusion. She asks dampatient to perform one type of treatment
ages because of injury to the laryngeal nerve
.and subsequently performs a substantially . . during surgery. The eviden~e is undisputed
different treatment for which consent was ·.
· that whether one or two fusions were to be
not obtained there is a clear case of battery.
done the path to the axial column had to be
However, wh~n an undisclosed potential
” cleared by retraction of the visceral column.
complication results, the occurrence of which : . Hence, any injury ca_used by such retraction occurred during a procedure to which
Was not an integral part of the treatment ;
consent had been given. Retraction of the
Procedure but merely a known risk, the .· ·
I
h
courts are divided on the issue of whether
: visceral column dur ng t e surgery was not a
th is should be deemed to be a battery or
·. battery or trespass. ·.· ·
we have no occasion
to reach
negligence.
·
·
l •the’ffquesf h
· · tion whether failure to. advise p amt, o t e
isk of laryngeal nerve injury would in the
~e agree With the majority trend. The bat~ircumstances of th!s case have generat~d
a jury Issue on negligence, but we do point
~ry theory should be reserved for those
…
· ·
(continued)
(continued from previous page)
out that recovery on such basis is precluded
unless a plaintiff also establishes he would ·
not have submitted to the procedure if he
had been advised of the risk•••• There is no
evidence plaintiff would have with&
consent In this case. · ··.
.
…
· Affirmed.
Discussion Questions
1. Has due care been shown? Need it be?
2. What is the “second foundation fact,” and how does “common experience” matter
relation to it?
··
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·
,
3. The opinion states, “There must be a substantial difference between the surgery
consented to and the surgery which is done [for a battery case to be made).” What·
would amount to a “substantial difference” in your mind? What if throat cancer had
been discovered and cleanly removed with no·aftereffects? Would that procedure bff
substantial difference justifying damages for battery even though_no other injury (a
fact, a benefit) had resulted? ·· ·
··
.
4. Why did the court “have no occasion’~ to d.ecide wh~ther failifre to advise the .plainti
the risk of nerve injury raised a negligence issue?.
·
::@i.t,·; :?·
~ .
•,
Notes
1. Pederson v. Dumouchel, 431 P.2d 973, 978 (Wash. 1967).
2. Baldor v. Rogers, 81 So. 2d 658 (Fla. 1954), rehg denied, 81 So. 2d
661 (Fla. 1955); ANGELA R. HOLDER, MEDICAL MALPRACilCE LAw47
(2d ed. 1978).
3. Defilippo v. Preston, 53 Del. 539, 173 A.2d 333 (1961).
4. Miller v. Toles, 183 Mich. 252, 150 N.W. 118 (1914).
5. Fiorentino v. Wenger, 272 N.Y.S.2d 557, 26 A.D.2d 693 (1966), m’d
on other grounds, 19 N.Y.2d 407,227 N.E.2d 296 (1967).
6. Faulkner v. Pezeshki, 44 Ohio App. 2d 186, 337 N.E.2d 158 (1975 )· d
7 . Small v. Howard, 128 Mass. 131, 35 Am. R. 363 (1880) was overrule
by Brune v. Belinkoff, 235 N.E.2d 793 (Mass. 1968).
8. Zills v. Brown, 382 So. 2d 528, 532 (Ala. 1980).
9. 382 So. 2d at 532. See also Morrison v. MacNamara, 407 A.2d 555
(D.C. 1979).
(A'”
254 …
10. Drs. Lane, Bryant, Eubanks & Dulaney v. Otts, 412 So. 2 d
1982).
54 (1971)·
11. ]ON R. WALTZ & FREDE. INBAU, MEDICAL JURISPRUDENCE
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