Chapter 4.C.1 and 4.C.2--Res Ipsa, Negligence per se, the Helling Case and Defensive Medicine
For an update on relevant caselaw, see Joseph H. King, The common knowledge exception to the expert testimony requirement for establishing the standard of care in medical malpractice, 59 Ala. L. Rev. 51-105 (2007).
The Kentucky Supreme Court held that res ipsa, and not negligence per se, should apply to foreign object cases, considering the complexity of surgical teams and who precisely is responsible for counting and retrieving surgical objects. Nazar v. Branham, ___ _____ (Ky. 2009).
Because doctors practice defensively to avoid allegations of negligence, and because law holds doctors to general professional standards of practice, the custom standard can create a "feedback effect" that forces doctors to practice excessively, according to James Gibson, Doctrinal Feedback and (Un)reasonable Care, 94 Va. L. Rev. 1641 (2008). He cites electronic fetal heart monitoring as a prime example, and argues that even substantial doctrinal reforms will likely not fix the problem. Instead, the reasonable care negligence standard should be abandoned in favor of no-fault liability.
For additional discussion of the advisability of screening for glaucoma, see http://www.annfammed.org/cgi/content/full/3/2/171.
Medicare has a new policy of not paying for certain "never events" - those that should never happen, such as removal of foreign objects after surgery, administering the wrong drug or dosage, operating on the wrong body part -- should help to further shape applications of negligence per se or res ipsa loquitur. Somewhat surprisingly, the list also includes patients injured by falling, and some pulmonary embolisms. See Health Lawyers News, Feb. 2008, p. 26.
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