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Professor Vernellia Randall
The University of Dayton School of Law
This course was offered between 2008 -2012.
This course explores the relationship between patients and their health care providers and the potential malpractice liability arising from that relationship. Students will examine key concepts such as negligence, proximate cause, damages, and informed consent. Defenses to malpractice action will be explored. The course will also highlight the movement toward statutory regulation and reform including the use of arbitration and other methods of alternative dispute resolution.
Philosophy of Teaching
How one teaches is necessarily influenced by what one perceives as the goals of legal education. Certainly, the primary goal is to prepare you to be effective lawyers, judges and policy makers. At a minimum, that includes helping you to develop the ability to: *think critically, precisely, and clearly; *express yourself succinctly; *understand the expressions of others; particularly those who are different than yourself; *understand human nature, particularly the motivations and needs of your clients, opponents, jurors, judges, etc.; *use the techniques of the legal profession to represent a client in general matters, to recognize where you lack competence, and to comply with accepted ethical standards While it is hardly arguable that preparing you to be an effective lawyer is an important goal, it is not the only one. Many of you will be law makers and policy makers, thus training you to understand the values implicit in the law is an important goal. Another important goal is to train you to address in a systematic manner your social responsibilities as an individual lawyer and your collective responsibilities as a member of the bar. This includes your responsibility to assist your community in maintaining an accessible, effective and socially responsible legal system.
Thus, my objective is to help you continue the process of meeting those goals. The primary focus of my teaching method is to provide you an>educationally sound introduction to health care malpractice. Furthermore, given the impact race and gender have on the law (and vice versa) my approach to teaching is to explicitly explore diversity issues as a component of all aspects of the course.
A. Teaching Objective #1: Educationally Sound Pedagogy An educationally sound legal pedagogy is a philosophy of legal education which is grounded in known educational theory. To be so grounded, an educationally sound legal pedagogy: *trains you to solve legal problems by providing you with working program for solving problem;
*provides you with the opportunity to excel;
*provides you with criteria for excelling and specifically what progress you are making;
*provides you with the opportunity to practice each new skill throughout the learning process; and,
*provides you with adequate instruction on how to study for law school and this course.
Thus, it is my goal, through an educationally sound pedagogy, to provide you with an opportunity to learn and to excel.
B. Teaching Objective #2: Health Care Malpractice Health Care Malpractice teaching objectives are those objectives that relate directly to the substantive area of the law. They can be divided into two categories: knowledge and skills/abilities. The objectives of this course are:
*to provide you with a basic understanding of the law as it relates to Health Care Malpractice;
*to provide you information about selected principles of black letter law and significant issues (or unsettled matters);
*to help you understand the value implications of legal choices;
*to help you develop and improve your analytical skills including understanding, issue-spotting, problem-solving, judgment and synthesis;
*to help you to understand the importance of inference and intuition in problem definition and problem-solving; and
*emphasize that "personal neutrality" is not necessary to scholarly objectivity.
C. Teaching Objectives #3: Diversity-Conscious Legal Pedagogy Class, disability, gender, race and sexual preference issues are such an integral part of our society (and the legal profession) that we often overlook how the law affects individuals with different backgrounds differently. In a diverse society, such as ours, awareness of how different class, disability, gender race and sexual preference are effected differently by the law is essential. This is true whether the person is a defendant, plaintiff, lawyer, juror, judge or law student. Diversity awareness should be a normative part of the value system of the practicing attorney. An education which is aware of diversity: *explores how racial, ethnic, gender, class, disability, cultural and sexual orientation are related to and impacted by the structure of law. In particular, it illuminates the connection between racial and gender issues and the values, interests, rules and theories that appear to be neutral but, are in fact a representation of the values of the dominant culture;
*broadly frames classroom discussion so that we step outside the doctrinal bounds of the law to critique the rules and legal practice; and,
*focuses discussion on problems, interests and values that reflect a broad range of perspectives
Unit 01: Introduction
Lesson 01: Intro to Health Care Malpractice
Lesson 02: Defining Sickness and Quality in Health Care
Lesson 03: The Problem of Medical Error
Lesson 04: Obligation to Provide Care: Physician Duty
Lesson 05 Obligation to Provide Care: Hospital Duty
Lesson 06: The Contract Between Patient and Physician
Unit 02: Liability of Health Care Professionals
Lesson 07: Standard of Care - Part I
Lesson 08: Standard of Care - Part II
Les Lesson 10: Defenses to a Malpractice Suit - Part I
Lesson 11: Defenses to a Malpractice Suit - Part II
Lesson 12: Causation Problems
Lesson 13: Damages Innovations
Lesson 14: Confidentiality - Part I
Lesson 15: Confidentiality - Part II
Lesson 16: Informed Consent - Part I
Lesson 17: Informed Consent - Part II
Unit 03: Liability of Institutions
Lesson 18 Immunity to Vicarious Liability
Lesson 19 Direct Liability
Lesson 20 Direct Liability
< Lesson 21 Managed Care - Basic Concepts
Lesson 23 Managed Care - Tort Liability
Lesson 24 Managed Care - ERISA
Lesson 25 Managed Care - ERISA
Unit 04: Tort Reform
Lesson 26 Tort Reform - Part I
Lesson 27 Tort Reform - Part II/ End of Class
Learning in law school is essentially self-directed. Most of your learning will happen outside of the classroom and independently of myself or any other professor. In fact, many professors, (myself included) will test you on significantly more than can ever be covered in class. My role is to structure my course in such a way as to facilitate your self-directed learning. I do that through the following: detailed syllabus, assignments and cooperative learning.
The syllabus for this course consist of this webpage and connected webpages. The syllabus is an important study tool. It provides you with specific guidelines as to my expectations regarding what you should learn, what skills and understanding I value and how I organize the content of the course. However, the syllabus is not a contract and I retain the right to modify it at my discretion.
Assignments consist of both readings and videos. The assigned reading provides you with the opportunity not only to obtain rule and process information. The assigned readings serve as a basis for discussion. It is my expectation that you will be thoroughly familiar with the assignment and completely prepared for class participation.
C. Classroom Instruction
Using Cooperative Learning The primary teaching technique in this class is cooperative problem-solving. In this class, cooperative learning will be used to: teach specific content, ensure active cognitive processing during class and provide long-term support and assistance for academic progress. During the past 90 years over 600 research studies have been conducted comparing the effectiveness of cooperative, competitive and individualistic efforts. These studies have been conducted by a wide variety of researchers in different decades with different age subjects, in different subject areas and in different settings. More is known about the efficacy of cooperative learning than about the so- called "Socratic method" or lecturing.
From this research you may expect that the more you work in cooperative learning groups the more you will learn, the better you will understand what you are learning, the easier it will be to remember what you learn, and the better you will feel about yourself, the class, and your classmates.
Evaluation and Grading
Your grade in the course will be based on:
Quizzes: Medicine for Lawyers 20%
Extra Credit: Videos and Reflection Papers max 4 pts.
Class Participation includes: being prepared to effectively contribute, actively participating in class and group discussion. keeping abreast of news related to Health Care Malpractice and sharing relevant news information with the class (including posting copies of interesting items for the Bulletin Board).
This is a cooperative participatory learning class. That means that your absence effects the learning of others. Consequently, missing classes significantly affects your grade.
In general, missing more than 2 classes will significantly effect your class participation grade. Missing more than 15% of the classes (3) will cause your overall grade to be reduce by at least a half grade. For instance, from a B to a B-. However, class participation means more than showing up for class. Class participation includes actively participating in class including being adequately prepared. Your grade for class participation will be based on attendance and your good faith participation in the group process.
Attendance is required. Attendance will be taken at the beginning of each class hour. Students who are not seated and prepared to begin class when attendance is taken will be counted as tardy. A tardy counts as an absence.
"Excused absence" shall mean documented illness of self, documented illness of child, school-sponsored participation in competitions, or a family emergency. "Family Emergency" is limited to death or catastrophic occurrence affecting the student's immediate family or closely-extended family. Flat tires and similar automotive failures, computer problems, speeding tickets, work, interviews, court dates, etc. are per se unexcused absences.
Class Participation requires presence during the entire class period. Students should not leave the classroom once class has begun except in emergencies.
Class Participation requires attention. Students should refrain from engaging in activities that are disruptive to the class. Professional conduct requires that students refrain from eating, talking or laughing while others are speaking, passing notes, playing games, reading newspapers, or in any other manner disrupting the educational process by being present but rude or inattentive. Turn off all cell phones, pagers, beepers, alarms, or other gadgets before class. Students acting in an unprofessional manner will be asked to leave the classroom and will be counted absent for that class. You may use your laptop during class BUT NOT during small group activities.
Class Participation requires preparation. Occasional inability to complete the assignments is understandable. Missing more than 3 problems will affect your problem grade. If you are not prepared for class by having your problem completed before class, your class participation grade will be considered unprepared.
Daily class participation grade will be as follows:
Holistic Rubric for Scoring Class Participation
Student is prepared, contributes readily to the conversation but doesn't dominate it; makes thoughtful contributions that advance the conversation; shows interest in and respect for other views; participates actively in small groups ++
95 Student is prepared and makes thoughtful comments when called on; contributes occasionally without prompting; shows interest in and respect for others views; participates actively in small groups; while the students contributions are less well developed, they nevertheless advance the conversation.
+ 85 Student is prepared, but does not voluntarily contribute to discussions and gives only minimal answers when called on; nevertheless student show interest in the discussion, listens attentively and participates actively in small groups.
U 75 Student is prepared but participates in a problematic way; students may talk too much, make rambling poor tangential contributions, continually interrupt with digressive questions, -
65 Student attended class but was not prepared, bluff their way when unprepared or otherwise dominate discussion, not acknowledging cues of annoyance from professor or students nc
55 Student did not attend class or if student attended is disruptive or hostile, overtly rude. 0 0
During most classes we will work on problems, in fact the primary focus of the class will be on problems. You should work out an individual answer to the assigned problems and be prepared to fully participate in the class. All problems should be formatted and answer as if you were providing an answer to your immediate supervisor. That is, unless otherwise noted by the problem or by Professor Randall, your answer should constructed as a memo to senior partner and should be appropriately footnoted
Formatting Convention: Problem answers should be typed, single spaced, 1 inch margins, 12 pt. Times Roman. Length should be appropriate to answer the problem; as a guidance that generally mean between 750 to 1500 words.
YOU SHOULD DROP THE PROBLEM BEFORE CLASS IN THE TWEN DROP BOX AND YOU SHOULD BRING TWO COPIES of YOUR PROBLEM ANSWER to CLASS. One copy will be turned in during class. The other copy is for your use during class. At the top of the page in the right hand-corner place your name on the first line and on the second line place the problem number and name. Problem answers will be collected during class. No problems answer will be accepted late (That is after class).
For each problem you should prepare your own answers BEFORE CLASS. Those answers should be turned in at every class . Your problem answer should reflect a good faith attempt to answer the question.
No credit will be given if you are not in class.
Problems will be evaluated using the following:
Problem Grading Rubric.
++ 95 Outstanding response with superior supporting examples or evidence, unusual insights, creative and original analysis, reasoning, and explanation. superior mastery of content. goes well beyond the minimum required for the assignment. all information is factually correct, Position is clearly stated and consistently maintained. References to most of the issue(s) are clearly stated. Clearly states appropriate law which supports the position; Structure of work is clearly developed. Tone is consistent and enhances persuasiveness. excellent conclusion/integration; excellent citations.
+ 85 Good solid response that uses excellent supporting examples, excellent reasoning and explanations. goes beyond the minimum required by the assignment. Most information is factually correct, good discussion of detail, Position is clearly stated and consistently maintained. Clear references to most of the issue(s) are stated. Clearly states appropriate law which supports the position; Structure of work is clearly developed . Tone is consistent and enhances persuasiveness good conclusion/integration U
75 good solid response that meets minimum required by the assignment, reasoning and explanations are adequate, Most information is factually correct, adequate discussion of detail, Position is clearly stated and consistently maintained. References to the some of the issue (s) are stated but some key issue (s) are missing. Clearly states appropriate law in some instance, but also mistates the law in other instances; Structure developed reasonably well, but lacks clarity; Tone enhances persuasiveness, but there are inconsistencies., adequate conclusion/ integration -
65 Response is accurate but cursory, and does not meet the minimum requred for completeness, some inaccuracies or reasoning flaws, response is too general, lacks specific evidence. Position is stated, but is not maintained consistently throughout work. A few of the key issues are stated but many are missing. Mostly mistates the law applicable to the problem; Some attempt to structure the argument has been made, but the structure is poorly developed. Tones does not contribute to persuasiveness. nc
55 Response doesn't effectively address the question, response fails to support assertions with examples, major flaws in reasoning, explanations are unclear, displays inadequate understanding of content/ Statement of position cannot be determined. Most of the key issues are missing. There is a total lack of structure; Tone is inappropriate to purpose. 0
0 No Problem Complete
There will be quizzes on Medicine for Lawyers. The quizzes will be taken from textbook readings. Quizzes will cover text material only from the assigned week. It is closed book.
Introduction to Medicine for Lawyers
The Cardio-vascular System
The Respiratory System
The Digestive System
The Uro-genital/Endocrine System
The Nervous System
The Musculo-skeletal System
You will receive up to 4 pts for viewing and critiquing the following films. Write a 500 - 750 word typed reflection paper. What do you think about the series? What do you think of the lawyering? What is the most important thing that you learn from the film and why? Consider the legal and ethical responsibilities of a lawyer.
Critical Condition: How Good is Your Health Care Jan 27 Successful Advocacy - Jury Selection Feb 10 Successful Advocacy - Opening Statement Feb 19 The Expert Medical Deposition: How to be an Effective and Ethical Witness Feb 26 Successful Advocacy - Direct Examination Feb 26 Successful Advocacy - Cross Examination Mar 09 Successful Advocacy - Adversing the Defendant Apr 06 Successful Advocacy - Summation Apr 15
Tejo v. Bloshinsky: A Doctor's Fault or a Woman's Fate This reflection should be between 1200 words to 1500 words and should be critiqued in light of what you learned from the Successful Advocacy Series TBA
Furrow, et.al, Liability and Quality Issues in Health Care (2001)
Furrow, et.al., 2003 Supplement to Liability and Quality Issues in Health Care (2003)
Lewis, Techniques of Medical Litigation (1997)