WASHINGTON COLLEGE OF LAW, AMERICAN UNIVERSITY MEDICAL LIABILITY & PUBLIC HEALTH PROFESSOR STEVEN M. PAVSNER SYLLABUS

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1 I. Synopsis WASHINGTON COLLEGE OF LAW, AMERICAN UNIVERSITY MEDICAL LIABILITY & PUBLIC HEALTH PROFESSOR STEVEN M. PAVSNER SYLLABUS The objective of the seminar, Medical Liability and Public Health, is to provide an indepth look at this specialized topic within the field of tort law. The course will offer an overview of the traditional medical liability system; explore the state of the law of medical liability; provide practical insights into how to bring, pursue, defend and resolve a medical liability claim; and discuss alternative approaches to the traditional medical liability system, including those in place and those under discussion at the time of the seminar. The course will be presented in lecture format, and will be enriched with frequent guests experienced in the field, including judges, mediators, plaintiff and defense lawyers, and experts who have testified in medical liability cases. There will be substantial opportunity for class participation. Readings will be assigned from current case reports, applicable statutes, medical literature and other materials collected in a two-volume set compiled by the Professor, and as updated with cases decided during the course. This is a two (2) credit course, for which Civil Procedure and Torts are prerequisites. The seminar will benefit students wishing to work in the medico-legal field, as well as students interested in tort litigation in general. II. Evaluation The seminar will be evaluated on the basis of class participation and a take-home exam. Students taking the exam will be given a complex fact pattern and related documents, including appropriately redacted medical records, hospital policies and guidelines, applicable statutes, pleadings, and other documents, and will be tested on their ability to identify the proper parties, set forth the claims and defenses that may be asserted, and discuss the damages the plaintiff(s) may be entitled to recover. Alternatively, students may elect to write a paper of writingrequirement quality on a topic selected in consultation with the Professor. III. Profile of the Professor Professor Pavsner is a 1972 cum laude graduate of the Woodrow Wilson School of Public and International Affairs at Princeton University, and a 1975 graduate of the Georgetown University Law Center. He is a member of the United States Supreme Court, District of Columbia, Maryland, Florida and Pennsylvania Bars, as well as the Bars of various federal courts. Mr. Pavsner is an active practitioner and a shareholder in the Litigation Group of Joseph, Greenwald & Laake, P.A., a 35-lawyer Firm in suburban Maryland. He has extensive experience in professional negligence, product liability and general personal injury litigation, as well as in class action, multi-district, and other complex civil litigation. He is rated AV

2 Preeminent 5.0 out of 5 by Martindale-Hubbell, and has been recognized as a Super Lawyer in Washington and Maryland each year since the ratings began. He has lectured on various trial practice and substantive tort and evidence topics to lawyers and law students, and is currently a member of the Adjunct Faculty of the Washington College of Law. IV. Description of the Seminar Week 1: Overview of the Current Medical Liability System This class will present an overview of the course, discuss the applicability of traditional tort concepts to the specialized area of medical negligence litigation, and introduce some of the special issues relevant to medical malpractice claims. Advance Reading for the Class: Chapter 1 in Class Materials. Week 2: The Health Care Provider Relationship Discussion of the nature of the relationship, how it is established and how and when it ends, including, with respect to establishment of the relationship, special issues related to liability of good Samaritans and liability to third parties. With respect to how and when the relationship ends, issues related to follow-up, referral and abandonment will be explored. Advance Reading for the Class: Chapter 2 in Class Materials. Week 3: Understanding Medical Records Discussion of the various parts of office and hospital charts; how to read and understand charts; what to look for as evidence of good practice or malpractice; rules, regulations and practices applicable to creating and maintaining medical records; proper and improper changes to medical records; and the potential consequences of changing medical records in response to a bad outcome. Privacy and HIPAA issues also will be explored. Advance Reading for the Class: Chapter 3 in Class Materials. Week 4: Informed Consent Informed consent is a critical stage of medical treatment; the failure to obtain informed consent can lead to liability for negligence, or for the intentional tort of battery, or in extreme cases to charges of human experimentation. This class will explore the concept of informed consent, including what must be disclosed to the patient, what happens if the

3 patient refuses consent, and to what extent obtaining a patient s informed consent protects a health care provider from a claim of medical liability. Advance Reading for the Class: Chapter 4 in Class Materials Week 5: Negligence of the Health Care Provider In the context of medical liability, negligence is a violation of the applicable standard of care. This class will discuss the standard of care for health care providers, and the source materials from which the standard may be derived (e.g., practice bulletins and guidelines, medical texts and literature, and the like). Differences between national standards and various forms of the locality rule will be discussed, as well as differences among a violation of the standard of care, a bad result, a judgment call and a school of thought. Non-medical acts that may give rise to liability (e.g., promises, guarantees, and the like) also will be discussed. Advance Reading for the Class: Chapter 5 in Class Materials. Week 6: Negligence of Health Care Institutions It is well established that a hospital, nursing home or other health care institution is responsible for the negligence of its employees, according to the doctrine of respondeat superior. This class will discuss special issues of institutional liability, including hospital liability for independent contractors who are their apparent agents, liability of health maintenance organizations that make utilization decisions that may adversely affect patient care, and nursing homes that must comply with the Omnibus Budget Reconciliation Act of 1987 ( OBRA 87 ). Advance Reading for the Class: Chapter 6 in Class Materials Week 7: Causation In medical negligence as in other torts, negligence is not actionable unless it causes harm to the patient. The usual standard for determining causation is whether it is more likely than not that the negligence caused the harm. However, medical negligence cases can present special issues, such as the value of a chance, and how to predict and quantify the likelihood of future harm. This class will explore those issues. Advance Reading for the Class: Chapter 7 in Class Materials. Week 8: The Role of Experts

4 With few exceptions, as in the rare circumstance when res ipsa loquitor may apply, medical negligence must be established through the expert testimony of other health care providers. The expert is entitled to express opinions by virtue of his or her education, training and experience, but the opinions themselves must be based on the evidence in the case and on generally accepted science, found in documents, learned treatises, published standards and expert testimony. This class will explore the role of experts in medical negligence litigation, sources of their opinions, and limitations on the opinions they may express (arising, e.g., from Daubert). It also will discuss how a lay jury may be expected to deal with the battle of the experts. From the defense side, the class will explore the emerging strategy of characterizing expert testimony as the practice of medicine, and threatening plaintiffs experts with professional sanctions. Advance Reading for the Class: Chapter 8 in Class Materials Week 9: Damages In medical negligence as in other torts, the defendant is responsible for the harm that his or her negligence proximately caused. This class will discuss how to quantify damages and explore both economic and non-economic damages arising from medical negligence, what they include and how they are calculated, with particular emphasis on how juries assess non-economic damages, and how life care planners, economists and other experts may be utilized to calculate damages. Advance Reading for the Class: Chapter 9 in Class Materials Week 10: Discovery and Pre-Trial in Medical Liability Claims Like other complex civil litigation, medical liability cases can be won or lost in discovery. This class will discuss the nuts and bolts of pursuing a medical liability claim, including pre-filing investigation, preparing the complaint, pre-trial discovery, locating and using consultants and designated experts, deposing experts, pre-trial statements and conferences, and preparing for trial Advance Reading for the Class: Chapter 10 in Class Materials. Week 11: Defending the Medical Liability Case Medical negligence cases can be defended on procedural and substantive grounds. This class will explore the principal procedural mechanisms (such as venue and statute of limitations), as well as substantive defenses beyond mere denial of liability (such as the learned intermediary, assumption of the risk, contributory negligence, and the like. Advance Reading for the Class: Chapter 11 in Class Materials

5 Week 12: Resolution of Medical Liability Claims This class will discuss how to value a medical negligence case for settlement; courtordered mediation and the increasingly common practice of private mediation as a substitute or supplement to court-ordered mediation; and the advantages of settlement for financial planning purposes, such as resolving subrogation claims, structuring settlement payments and establishing special needs trusts in appropriate circumstances. The class will also discuss the effect of common clauses in malpractice policies that require the insured s consent to settle, and of the reporting requirement to the National Practitioner Data Bank. Advance Reading for the Class: Chapter 12 in Class Materials Week 13: Current Trends & Alternative Systems In response to concerns about frivolous lawsuits, jackpot justice, skyrocketing malpractice premiums, doctors allegedly leaving or moving their practices, and other concerns, real and chimerical, numerous states and the federal government have considered or instituted changes to the traditional tort system as applied to medical negligence claims. These changes have taken many forms, such as establishing a preliminary review board to screen or decide malpractice claims, capping damages, changing the collateral source rule and capping attorneys fees. This class will discuss the benefits and detriments associated with these various changes, consider whether or to what extent they have solved the perceived problem, and explore other options. Week 14: Review Advance Reading for the Class: Chapter 13 in Class Materials This class will be devoted to preparing for the final exam, discussing papers being written in lieu of the final exam, and answering any questions that may be lingering from the class presentations or arising from the class requirements. Advance Reading for the Class: None