A doctor performs a shoulder surgery on a patient to repair a torn rotator cuff.

Scenario 1

A doctor performs a shoulder surgery on a patient to repair a torn rotator cuff. The surgery was expected to take one hour, but during the surgery, the doctor made a mistake (arguably one that rose to the level of medical negligence), causing the surgery to last more than four hours. The patient decides to sue the doctor for medical malpractice, claiming that as a result of the mistake, the patient has limited mobility and can no longer lift his right arm above shoulder level. But the doctor’s malpractice insurance company hires a private investigator, who films the patient playing tennis (right-handed) and lifting heavy boxes above shoulder level while helping a friend move. (Note: It’s perfectly legal for an insurer to hire a PI to observe a claimant in this manner, and it happens more often than you might think.)

Scenario 2

A patient visits a doctor, complaining of severe headaches. The doctor fails to spot red-flag symptoms and commits a treatment error by failing to order the right tests, telling the patient that the headache is just a migraine, and prescribing a painkiller. As it turns out, the patient is in the advanced stage of brain cancer, and the condition is incurable and largely not treatable. The patient dies one week later. 

Instructions

Read the case scenarios carefully several times

Analyze all defenses that may apply and explain whether the defense will prevail against a liability claim

Include and explain each defense in your answer