accident attorney Medical Malpractice 2 — Questions and Answers
Question 1: Under the doctrine of 'respondeat superior,' a hospital may be held liable for the malpractice of a staff nurse because:
- Hospitals are strictly liable for all injuries occurring on their premises
- An employer is vicariously liable for negligent acts of its employees committed within the scope of employment (Correct answer)
- The hospital's insurance policy automatically covers all employees
- Nurses are always considered agents of the hospital regardless of employment status
Correct answer: An employer is vicariously liable for negligent acts of its employees committed within the scope of employment
Respondeat superior holds employers vicariously liable for employee torts committed within the scope of employment, making the hospital responsible for a staff nurse's negligence during patient care.
Question 2: A 'certificate of merit' requirement in medical malpractice cases typically requires the plaintiff's attorney to:
- Pay an additional filing fee before the case can proceed past the pleading stage
- File an affidavit from a qualified expert stating there is a reasonable basis for the malpractice claim before or shortly after filing suit (Correct answer)
- Obtain a settlement offer from the defendant as a prerequisite to filing
- Submit the case to a medical review board and wait for their ruling before proceeding to trial
Correct answer: File an affidavit from a qualified expert stating there is a reasonable basis for the malpractice claim before or shortly after filing suit
Many states require a certificate of merit — a qualified expert's affidavit confirming a reasonable basis for the claim — to screen out frivolous malpractice suits at the outset.
Question 3: In medical malpractice, establishing causation requires the plaintiff to prove that the defendant's negligence:
- Was the sole and exclusive cause of the injury
- Was a substantial factor in causing the harm, and that the harm would not have occurred but for the negligence (Correct answer)
- Was documented in the medical record before the injury occurred
- Was witnessed or corroborated by a third-party observer
Correct answer: Was a substantial factor in causing the harm, and that the harm would not have occurred but for the negligence
Causation requires both actual cause (but-for the negligence the injury would not have occurred) and that the negligence was a substantial contributing factor to the harm.
Question 4: Many states have enacted 'caps' on non-economic damages in medical malpractice cases primarily to:
- Ensure plaintiffs always receive adequate compensation for all injuries
- Limit recovery for pain, suffering, and emotional distress in order to control malpractice insurance costs and keep providers practicing in the state (Correct answer)
- Prevent attorneys from charging contingency fees in malpractice cases
- Allow defendants to avoid paying any economic damages above a set threshold
Correct answer: Limit recovery for pain, suffering, and emotional distress in order to control malpractice insurance costs and keep providers practicing in the state
Non-economic damage caps are enacted to reduce malpractice insurance premiums and discourage providers from leaving high-risk specialties or states with large jury verdicts.
Question 5: The 'loss of chance' doctrine in medical malpractice allows recovery when:
- The plaintiff cannot identify which of several providers caused the injury
- The defendant's negligence reduced the plaintiff's statistical chance of a better outcome, even if a full recovery was never guaranteed (Correct answer)
- The plaintiff lost a business opportunity while recovering from the medical injury
- The defendant failed to make a settlement offer before the case went to trial
Correct answer: The defendant's negligence reduced the plaintiff's statistical chance of a better outcome, even if a full recovery was never guaranteed
The loss of chance doctrine permits recovery where negligence diminished a patient's probability of survival or a better result, even if the initial prognosis was already unfavorable.
Question 6: A pre-lawsuit medical review panel, required in some states, is designed primarily to:
- Issue binding judgments that prevent meritless cases from ever going to court
- Provide an expert preliminary evaluation of whether the malpractice claim has merit before the case proceeds (Correct answer)
- Set the binding amount of damages the defendant must pay if liability is found
- Permanently replace the jury's role in medical malpractice cases
Correct answer: Provide an expert preliminary evaluation of whether the malpractice claim has merit before the case proceeds
Medical review panels offer a non-binding expert assessment of a claim's merit, encouraging early settlement of valid claims and discouraging pursuit of groundless ones.
Question 7: The 'collateral source rule' in medical malpractice generally provides that:
- A defendant can offset their liability by amounts the plaintiff received from health insurance or disability benefits
- A plaintiff's damages are not reduced because the plaintiff received compensation from an independent source such as their own health insurance (Correct answer)
- Only the plaintiff's primary insurer can pursue a subrogation claim against the defendant
- Defendants must pay damages to both the plaintiff and the insurer simultaneously
Correct answer: A plaintiff's damages are not reduced because the plaintiff received compensation from an independent source such as their own health insurance
Under the collateral source rule, a tortfeasor cannot reduce their liability because the victim had insurance or other independent compensation — the tortfeasor bears the full cost of their negligence.
accident attorney Medical Malpractice 2
Under the doctrine of 'respondeat superior,' a hospital may be held liable for the malpractice of a staff nurse because: