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  1. Elements of negligence: To succeed in a medical malpractice action, the plaintiff must prove four elements by preponderance of the evidence. (1) Duty: The defendant owed a duty of care to the plaintiff. (2) Breach of duty: The defendant failed to act consistent with the standards of care. (3) Causation: The injury suffered by the plaintiff is linked to or caused by the defendant's breach of duty. (4) Damages: There is actual compensable loss resulting from the defendant's breach of duty.

  2. Exclusive contracts: Exclusive arrangements used by hospitals to contract for anesthesiology service and may be challenged on allegation of antitrust and restraint of trade.

  3. National Practitioner Data Bank: Information contained in this databank is protected from unrestricted public inquiry but is queried when medical staff application is made.

  4. HIPAA (Health Insurance Portability and Accountability Act): Protects health care information while asking acknowledgment that it may be released for uses related to medical treatment, payment, and/or health care operation, such as auditing performance evaluation and training program.

  5. Informed consent: Process by which a patient chooses to accept or refuse treatment offered once there has been exchange of information sufficient to establish an understanding of potential risks and benefits of both treatment and nontreatment options.

  6. Do not resuscitate orders: Should be reconsidered when patients with these orders are taken for surgery and anesthesia. A patient-oriented approach requires an individualized look at goal-directed and procedure-directed option.

  7. Parents are the natural guardian of their children and are expected to seek care that is in their children's best interest when needed. Courts usually appoint a guardian other than the parent and support decisions for medical care deemed to be clearly in the child's best interest.

The American legal system is composed of federal and state court systems, the latter of which is the usual forum for matters pertaining to anesthesia practice.1 State courts are established to adjudicate civil and criminal actions. Many consider our legal system to be cumbersome, overburdened, and often ineffective and unfair. Despite this reputation, it is our route to dispute resolution and protection of interests both personal and public. When contracts are formed by private parties, the legal system is called on to interpret language and hold parties to their contractual obligations. When one party is injured by another, the legal system is expected to resolve the matter and make whole the injured party to the extent possible. When criminal actions are taken, punitive action is imposed by the legal system.


Criminal courts deal with violation of criminal and other statutes and regulations for which penalties beyond those available in the civil system can be imposed. Penalties include fines and loss of privileges, including liberty. An occasional publication can be found that refers to cases where the practice of anesthesia resulted in criminal penalties.2 A finding of gross negligence can in some jurisdictions lead to a charge of homicide.3 These cases though ...

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