University of Washington School of Law Medical Malpractice (Law H502) 3 Credits Winter 2015 Tuesdays and Thursdays, 9:00-10:20 AM Room 217

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1 University of Washington School of Law Medical Malpractice (Law H502) 3 Credits Winter 2015 Tuesdays and Thursdays, 9:00-10:20 AM Room 217 Instructors: Liz Leedom Phone: (206) ELeedom@bbllaw.com Office Hours: By appointment Amy Magnano Phone: (206) AMagnano@bbllaw.com Office Hours: By appointment Please copy Ms. Leedom and Ms. Magnano on all written correspondence about the class. There will be times during this quarter when Ms. Leedom or Ms. Magnano will be in trial and in order to guarantee an answer on any class question, copy them both on all correspondence. Assistant: Victoria Parker, parkervt@uw.edu Course Overview: The course will begin with a description of the history of the tort of medical malpractice and its evolution as a perceived "crisis." We will then move on to an overview of informed consent and causes of action flowing from alleged failure to adequately disclose risks and other pertinent information. We will follow our discussion of informed consent claims with an analysis of the framework for a medical malpractice lawsuit, focusing initially on individual providers and ending with an examination of the issues surrounding institutional liability. The medical malpractice portion of the course will include an analysis and discussion of the various proposals for medical liability reform. We will also examine federal causes of action that have been joined with or stand alone from medical liability cases, including EMTALA, and HIPAA/HITECH. We will also look, in brief part, at the potential impact of the Affordable Care Act on medical liability cases. Throughout the course, the lectures will focus on practical aspects of the practice of medical malpractice law. The course will conclude with an examination to be taken by all students. Course Text: Furrow, Greaney, Johnson, Jost and Schwartz, Law & Health Care Quality, Patient Safety & Medical Liability 7th Edition (West Group/Foundation Press 2013). Course Materials: The course materials consist of a textbook and some supplemental readings. The supplemental readings for medical malpractice will provide a focused analysis of the relevant statutes and case law in Washington State. The Supplemental readings are available on-line and can be accessed via the syllabus or the course web-site. Course Expectations: This class meets on Tuesday and Thursday from 9:00 until 10:20 from January 6 through March 10. Students are expected to arrive on time for class, prepared to discuss the assigned materials for each session. We will do our best to guide the class through the assigned

2 material in a timely manner but, if we move more quickly or more slowly than anticipated, we will provide updated reading guidance sufficiently in advance of class to permit time to prepare. Students are also expected to check and the course website on a regular basis so that they are aware of updates and modifications to the syllabus and any additional information provided to the class. Finally, students are expected to complete all assignments in a timely manner and participate fully and fairly in any assigned group projects. Course Grade: There will be a three-hour open-book examination at the end of the term. This examination will account for 50% of the final grade. There will also be a problembased legal analysis and writing project designed to provide insight into the trial process; this assignment will comprise 40% of the final grade. In addition, you must sign up for two cases at the beginning of the term, which cases you will be expected to answer questions about on the day it is assigned to the class. Those cases are in red font, below. Class participation will be weighted at 10%. Electronic submissions: Written assignments are to be submitted via Canvas by 9 a.m. on the day they are due. Disability-related needs: To request academic accommodations due to a disability please contact Disability Resources for Students, 448 Schmitz, If you have a letter from Disability Resources for Students, please present the letter to us so we can discuss the accommodations you might need in this class Class 1, January 6 Introduction and Overview of Course History and Evolution of Medical Malpractice Mohr JC. American Medical Malpractice Litigation in Historical Perspective. JAMA 283(13): 1731 (2000). Studdert DM et al. Medical Malpractice. N Engl J Med 350(3):283 (2004) Leape LL et al. Promoting Patient Safety by Preventing Medical Error. JAMA 280(16): 1444 (1998). Joseph Treaster & Joel Brinkley, Behind those Medical Malpractice Rates, NY Times, Feb. 22, 2005 at 1. Class 2, January 8 The Treatment Relationship: Duty to Treat, Formation and Termination RCW Hurley v. Eddingfield, 156 Ind. 416 (1901) Clanton v. Hamm, 340 SE 2d 627 (1986) Reynolds v. Decatur, 660 NE 2d 235 (1996) Payton v. Weaver, 182 Cal. Rptr. 225 (1982) Miller v. Sullivan, 625 NYS 2d 102 (1995) Eelbode v. Chec. Med. Ctrs, Inc., 97 Wn. App. 462, 984, P.2d 436 (1999) Doyle v. Planned Parenthood, 31 Wn. App. 126, 639 P.2d 240 (1982) Peterson v. State, 100 Wn.2d 421, 671 P.2d 230 (1983) Khung Thi Lam v. Global Medical Systems, 127 Wn. App 657, 111P.3d 1258 (2005)

3 Class 3, January 13 Informed Consent: Overview Text: Alexander v. Gonser, 42 Wn. App. 234 (1985) Bundrick v. Stewart, 128 Wn. App. 11 (2005) Class 4, January 15 Informed Consent: WA Law RCW , RCW Holt v. Nelson, 11 Wn. App. 230, 523 P.2d 211 (1974). Keogan v. Holy Family Hospital, 95 Wn. 2d 306, 622 P.2d 1246 (1980). Smith v. Shannon, 100 Wn. 2d 26, 666 P.2d 351 (1983). Crawford v. Wojnas, 51 Wn. App 781, 754 P.2d 1302 (1988) Class 5, January 20 Informed Consent: WA Law Burnet v. Spokane Ambulance, 54 Wn. App. 162, 772 P.2d 1027 (1989) Bays v. St. Luke s, 63 Wn. App. 876, 825 P.2d 319 (1992). Whiteside v. Lukeson, 89 Wn. App. 109, 947 P.2d 1263 (1997). Backlund v. University of Washington, 137 Wn.2d 651, 975 P.2d 950 (1999). Class 6, January 22 The Standard of Care, and the role of the expert witness Text: RCW , RCW Gates v. Jensen, 92 Wn. 2d 246, 595 P.2d 919 (1979). Harris v. Groth, 99 Wn. 2d 438, 663 P.2d 113 (1983). Watson v. Hocket, 727 P.2d 669 (1986). Staccato v. Valley Hosp., 170 P 3d 503(Nev. 2007) Class 7, January 27 Written Assignment handed out Medical Malpractice: Alternative Liability Theories Miller v. Jacoby, 33 P.3d 68 (2001). Van Hook v. Anderson, 64 Wn. App. 353, 824 P.2d 509 (1992). Pacheco v. Ames, 69 P.3d 324 (Wash. 2003) Ambach v. French, 216 P.3d 405 (2009) Class 8, January 29 Medical Malpractice: Alternative Liability Theories/Loss of Chance Herskovits v. Group Health Cooperative, 99 Wn.2d 609, 664 P.2d 474 (1983) Mohr v. Grantham, 262 P.3d 490 (2011) Dormaier v. Columbia Basin Anesthesia, 177 Wn. App. 828, 313 P.3d 431 (2013)

4 Class 9, February 3 Medical Malpractice: Causation and Affirmative Defenses Text: RCW , RCW Ostrowski v. Azzara, 545 A.2d 148 (1998). Brown v. Dibble, 595 N.W. 2d 358 (1999). Young v. Group Health, 534 P.2d 1349 (1975). DeYoung v. Providence Medical Center, 136 Wn. 2d 136 (1998) Marthaller v. King County Hosp. District, 973 P.2d 1098 (1999). Class 10, February 5 Medical Malpractice: Damages and Settlement Text: RCW , RCW Sorenson v. Raymark, 756 P.2d 740 (1988). Harbeson v. Parke-Davis, 656 P.2d 483 (1983). McKernan v. Aasheim, 102 Wn.2d 411, 687 P.2d 850 (1984) Diaz v. State, 175 Wn.2d 457, 285 P.3d 873 (2012) Class 11, February 10 Institutional Liability Text: , Kadlec Med. Ctr. v. Lakeview Anesthesia Ass n, 527 F.3d 412 (5 th Cir. 2008). Pedroza v. Bryant, 101 Wn.2d 226, 677 P.2d 166 (1984) Jackson v. Power, 743 P.2d 1376 (1987) Class 12, February 12 Medical Malpractice Reform Text: Mello MM et al., Deterrence of Medical Errors: Theory and Evidence for Malpractice Reform, 80 Texas L Rev 1595 (2002). Congdon-Hohman, Joshua, et al., Potential Effects of the Affordable Care Act on the Award of Life Care Expenses. College of Holy Cross, Department of Economics (2012) Waples v. Yi, 169 Wn.2d 152, 234 P.3d 187 (2010) Putnam v. Wenatchee Valley, 166 Wn.2d 974, 216 P.3d 374 (2009) McDevitt v. Harborview Medical Center, 179 Wn.2d 59, 216 P.3d 374 (2013) Class 13, February 17 Statutes of Limitations RCW , RCW , RCW Caughell v. Group Health, 124 Wn.2d 217, 876 P.2d 898(1994) Ohler v. Tacoma General, 92 Wn.2d 507, 598 P.2d 1358 (1979) Winbun v. Moore, 143 Wn.2d 206, 18 P.3d 576 (2001) Olson v. Siverling, 52 Wn. App 221, 758 P2d 991 (1988) DeYoung v. Providence Medical Center, 136 Wn.2d 136, 960 P.2d 919 (1998) Schroeder v. Weighall, 179 Wn.2d 566, 316 P.3d 482 (2014)

5 Class 14, February 19 WRITTEN ASSIGNMENT MOTION IN LIMINE ASSIGNMENT DUE Guest Speaker, Cindy Jacobs, University of Washington Class 15, February 24 Alternative Dispute Resolution in Medical Malpractice Cases Discovery Issues in Medical Malpractice Cases Evidentiary Issues in Medical Malpractice Cases RCW 7.70A(voluntary arbitration) RCW , RCW RCW , RCW RCW Anderson v. Breda, 103 Wn.2d 901, 700 P.2d 737 (1985) Heidebrink v. Moriwaki, 104 Wn.2d 392, 706 P.2d 212 (1985) Washington State Physicians Insurance Exchange v. Fisons, 122 Wn.2d 299, 858 P2d 1054 (1993) Reese v. Stroh, 128 Wn.2d 300, 907 P.2d 282 (1995) Lowy v. Peacehealth, 174 Wn.2d 769, 280 P.3d 1078 (2012) Fellows v. Moynihan, 175 Wash.2d 641, 285 P.3d 864 (2012) Class 16, February 26 Wrongful Death in Medical Malpractice Context RCW , RCW , RCW , RCW Wills v. Kirkpatrick, 56 Wn. App 757, 785 P.2d 834 (1990) Herksovitz v. Group Health, 99 Wn.2d 609, 664 P.2d 474 (1983) Phillippides v. Bernard, 151 Wn.2d 376, 88 P.3d 939 (2004) Otani v. Broudy, 151 Wn.2d 750, 92 P.3d 192 (2004) Class 17, March 3 Confidentiality Text: RCW Doe v. Group Health, 85 Wn. App. 213, 932 P.2d 178 (1997) Carson v. Fine, 123 Wn.2d 206, 867 P.2d 610 (1994) Louden v. Myhre, 110 Wn.2d 675, 756 P.2d 138 (1988) Smith v. Orthopedics Intern., Ltd. P.S., 170 Wn.2d 659, 244 P.3d 939 (2010) Youngs v. Peacehealth, 179 Wn.2d 645, 316 P.3d 1035 (2014) Class 18, March 5 EMTALA Ostensible Agency Apportionment/Joint and Several Liability, Text: RCW Adamski v. Tacoma General, 20 Wn. App 98, 579 P.2d 970 (1978) Washburn v. Beatt Equipment Co, 120 Wn.2d 246, 840 P.2d 860 (1992) Adcox v. Childrens Hospital, 123 Wn.2d 15, 864 P.2d 921 (1993)

6 Class 19, March 10 Promises to Cure/Warranty Trial Practices Tips for Medical Malpractice Cases Overview for Final RCW Hansen v. Virginia Mason, 113 Wn. App 199, 53 P.3d 60 (2002) Come to class with questions, points of clarification, discussion items, etc Final Exam 3-hour Final Exam: will be handed out the Friday before exam period, and due by 4:30 p.m. on the final day of the exam period.