• Preface
• Nose Woes
• Sleep A. Lott Fights Back
• Thanu v. Commoshun: Softball Scandal
• A "Hearty" Case
• Tattoo Trouble
• Dee Pressed vs. Einstein University
• Medical Miss-Practice?
• Jim Socks v. R.U. Hert Hospital et al.
• Discrimination Not Acceptable
• Mason v. Greendale Board of Education
• Pointe in the Right Direction
• The Byotics v. Dr. Ivanna Fixu
• Goode v. Widget Pharmaceutical Company
• Hunter Ian Ventura vs. Vail
• Touchdown Takeback
• Meg Anicle vs. Radio City Music Hall Christmas Spectacular

In 1995-96 the New Jersey State Bar Foundation launched a unique, law-related education program for middle school students - the Law Adventure Competition.

Students in grades seven and eight and their teachers are invited to create original mock trial cases. Each year the Foundation provides two themes for cases. The cases are judged on the basis of originality and educational value in teaching students about their legal rights and responsibilities. Winners are selected in each grade level. The trials are then conducted before student audiences at special Law Adventure programs in the spring. The seventh- and eighth-grade audiences serve as juries.

Following are the winning cases from the Law Adventure 2001 Competition. Themes for last year's contest were as follows: (1) Malpractice - A failure to carry out your duties in a manner consistent with the accepted standards of a particular profession. This can be medical, legal or other professional malpractice. (2) May information regarding an individual's health history and genetic makeup be used to legally discriminate against an individual? For example, the State can prohibit a blind person from obtaining a driver's license. Other areas may not be as clear-cut. Consider what problems increased genetic knowledge may present.

The cases may be used as a guide to prepare a submission to the Law Adventure 2002 Competition or as a classroom exercise on the law. Please note that some of the cases may contain "laws" created by the students for the purpose of this competition, which may not necessarily be actual laws. The cases are fictitious.

This project is made possible by funding from the IOLTA Fund of the Bar of New Jersey.

If you would like to participate in the Law Adventure 2002 Competition, please call 1-800-FREE LAW or 732-937-7519 for a free copy of the State Bar Foundation's Law Adventure Competition brochure or write to Law Adventure 2002, New Jersey State Bar Foundation, One Constitution Square, New Brunswick, NJ 08901-1520.

For information about other free, law-related education services available from the New Jersey State Bar Foundation, visit us online at www.njsbf.org.

© 2001 New Jersey State Bar Foundation. All rights reserved.

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In the spring of 1999, Roxanne Pushy, known as "Roxy," a 16-year-old aspiring singer, had just released her first pop-music album and already had a top-ten single from the album. Her mother, Penelope Pushy, who also acted as Roxy's agent, had secured an appearance for Roxy on the upcoming Teen Music Awards, scheduled for September 5, 1999.

As a result of radio play and record sales, Roxy had received much critical acclaim for her vocal talent. Despite her beautiful voice, however, there were some in the industry who suggested that her physical appearance was not as appealing as that of her competition. In fact, her record company, Gotta Look Good Records (GLG), did not include her picture on her CD cover for fear she did not have the "face" to attract buyers. In search of the perfect image and "look," Penelope Pushy suggested that Roxy have plastic surgery on her nose.

In July of 1999, the two consulted Dr. Melvin Practice, one of the leading plastic surgeons in California. A promoter at GLG Records recommended him after transforming one of their biggest stars, Tiffany Tears, into the "face of teen music today." Dr. Practice counseled Roxy and her mother. He said that Roxy was attractive as she was and, at her young age, she might consider waiting several years and revisiting the decision then. Roxy and her mother firmly resisted his suggestion and insisted that the surgery be performed as soon as possible since Roxy was scheduled for her first appearance in September at the Teen Music Awards.

The surgery was a success, with no apparent complications. After the healing process was completed, Roxy was completely satisfied with her new look. Roxy appeared as a presenter at the Teen Music Awards in September and with her "new appearance" caused quite a stir. Thereafter, in the fall of 1999, Roxy went to work on her new upcoming album. While recording, Roxy's recording engineer noticed that Roxy's voice did not sound quite the same. Her voice was nasal and the sound of her vocals was noticeably different from her first recording. As a result, Roxy was dropped from GLG Records. Roxy is suing Dr. Practice for malpractice, claiming that Dr. Practice did not warn her of the risk that the surgery might cause a change in her voice.

ISSUE

Was Dr. Practice negligent when he failed to expressly inform Penelope and Roxy Pushy of the potential risk that a voice change could result from the surgery?

WITNESSES

For the Plaintiff
Mrs. Penelope Pushy
Dr. Izzy Wright

For the Defendant
Dr. Melvin Practice
Dr. Ryan O'Plasty

WITNESS STATEMENTS

Testimony of Penelope Pushy
My name is Penelope Pushy. I am mother and business manager for my daughter, Roxanne. I make all decisions regarding my daughter's career. In July of 1999, along with my daughter Roxanne, I consulted with Dr. Melvin Practice. We were referred to him by GLG Records and were advised that he was the leading cosmetic surgeon in the area, specializing in celebrities. In fact, Dr. Practice performed facial surgery on another famous pop star that had a very successful outcome. I also recognized him from the March 1999 cover of Forbes magazine entitled "The Booming Business of Beauty." He was ranked number one on the Forbes list of America's wealthiest plastic surgeons.

During the consultation, I informed Dr. Practice that we needed to have rhinoplasty immediately since my daughter was booked for an appearance at the Teen Music Awards in September, and this would be her first live appearance. It was very important that she look "just right." Although Dr. Practice gratuitously mentioned that we might consider waiting, he readily agreed to perform surgery and quickly accommodated our schedule and performed the surgery within eight days. At no time were we ever informed that a change in voice was a potential risk of the surgery.

After the surgery, we believed that everything had gone well and we were very excited. Six weeks later, we went for our follow-up consultation with Dr. Practice. He told us that her surgery was successful with no complications. With that in mind, I began to prepare for Roxy's appearance at the music awards, which was only two weeks away! On September 5, 1999, my daughter appeared as a presenter at the Teen Music Awards. With her new face and Versace dress, the press was extremely interested, calling Roxy the newest pop princess. Her first CD jumped from twenty-third on the charts to number two.

Because she was so sought after, the record company insisted that she begin working on her second album, which she did in September. It wasn't until that point that we realized that her voice had changed. We couldn't believe how nasal her voice sounded on tape. I immediately set up an appointment with Dr. Practice and told him about her voice. While acknowledging a change in Roxy's voice, Dr. Practice insisted that the surgery went well, that there were no complications, and that the voice change had nothing to do with the surgery. At that meeting, however, he admitted the possibility existed that some change in vocal quality might occur.

Before performing the surgery, he should have told me that. I'm told Dr. Practice claims that some pamphlet in his office mentioned the possibility that this could occur. First of all, he never directed us to such a pamphlet. But even if he did, I do not believe that a pamphlet with this information buried inside excuses him from expressly telling us of this risk. My daughter's singing career is over and Dr. Practice is responsible.

Testimony of Dr. Izzy Wright
My name is Dr. Izzy Wright. I am board-certified in the field of facial plastic and reconstructive surgery with over 25 years of experience. After six years of residency training in otolaryngology through California University Hospital, I successfully completed a fellowship in facial plastic surgery and am a fellow of the American Board of Otolaryngology. I have my own practice specializing in facial plastic surgery. I have personally performed over 1,000 rhinoplasty surgeries.

I was asked to examine Roxy Pushy in connection with this lawsuit. While doing so, I informed Mrs. Pushy that while the surgery was technically successful, it is my professional opinion that Roxy's nasal voice was due to internal scarring from the surgery.

While it is true that Dr. Practice is well known for his expertise in rhinoplasty, it is my professional opinion that Dr. Practice should have taken the time to verbally advise his patient of the risks of a voice change, especially since her career involved singing. The risk of a voice change is present in all cases. In fact, variations in vocal tones have been reported in roughly two percent of all cases.

While it is true that Roxy resumed her normal schedule shortly after the surgery, I do not believe that caused the scarring and nasal voice. While the scarring was not a result of substandard care, it was a risk and in my professional opinion, Dr. Practice had an obligation to inform the Pushys of this potential consequence.

Testimony of Dr. Melvin Practice
My name is Dr. Melvin Practice. I am a board-certified plastic surgeon with 28 years of experience in the field. I am the chief of plastic surgery at Memorial Hospital. I am the director of the North Shore Institute and well known in the plastic surgery community for my advanced work in rhinoplasty surgery. I have performed over 1,500 rhinoplasty surgeries.

In July of 1999, Penelope Pushy brought her young daughter, Roxy, to my office, insisting that she needed plastic surgery. I found Roxy to be an attractive young woman with a fresh and natural face. I suggested that surgery might be drastic for such an attractive girl and questioned whether she had given enough thought to this decision. I further advised that she might want to postpone her decision as her bones were still growing and natural changes were likely to occur.

Similarly, I tried to inform the two of all the risks and complications of surgery as I do in all cases. It was clear to me that this was not their concern as Mrs. Pushy rushed me along with each topic. I urged them to review the written material in my waiting room discussing the risks in detail. At the urging of Penelope Pushy, I performed the surgery on July 16, 1999.

I saw Roxy six weeks later for a consultation and her recovery was going very well. As usual, Penelope Pushy was present. I informed them that although Roxy was healing properly, she still needed to take certain precautions. I told them Roxy should gradually resume normal activities and that she should avoid strenuous activity which could increase her blood pressure. I also told her to avoid hitting or rubbing her nose and not to use excessive cosmetics. When I asked if Roxy was resting, Mrs. Pushy told me the record company had resumed the "normal" schedule. I reminded her not to overdo it, but as usual, my warnings were dismissed.

In September 1999, Penelope Pushy came to my office with her daughter, claiming that Roxy's voice had changed as a result of the surgery. After examining Roxy, I found no physical problems and noticed that her face had healed entirely. While I did detect a slight nasal quality to her voice, I am certain it was not the result of surgery.

There have been reported cases of such a change in vocal quality occurring after surgery. In all my years of experience, I have never seen this happen. Mrs. Pushy claims I never told her that such a risk existed. The risk was minute, but nevertheless I advised her to review the pamphlet in the office waiting room. The pamphlet clearly discussed rhinoplasty and clearly stated on page three that a potential risk is a "slight change in vocal quality or tone." Clearly, I acted professionally and more than competently and bear no responsibility for the Pushys' situation.

Testimony of Dr. Ryan O'Plasty
My name is Dr. Ryan O'Plasty. I am double board-certified in the fields of facial plastic surgery and reconstructive surgery as well as otolaryngology/head and neck surgery. I have been practicing medicine for 35 years and I am the head of plastic surgery of the Mayonnaise Clinic. I am best known for my medical treatise, "Know the Nose," and have written extensively about the risks and effects of cosmetic surgery. I have known Dr. Practice for 20 years. Dr. Practice is a colleague of mine and is well respected in the community.

I have performed many rhinoplasty surgeries and am very familiar with the risks and complications that could arise with a rhinoplasty surgery, which are very infrequent and minor. Some complications that could arise include nosebleeds, infection or a reaction to the anesthesia. These are often caused by resuming normal activity too quickly. These side effects are much more common than any effect on the voice itself.

In fact, I believe the chance that a vocal change might occur is so slim, it can hardly be characterized as a risk. In my experience, I have never seen this happen. To my knowledge, it has only occurred in a small percentage of cases. Thus, it would not be necessary to specifically warn of the possibility. Even if it were, a comprehensive pamphlet provided by Dr. Practice discussed this issue. Dr. Practice acted professionally and, in my professional medical opinion, did not deviate from accepted practices in the field of plastic surgery.

INSTRUCTIONS

Plaintiff must prove by a preponderance of the evidence that the defendant had a duty to inform her of the risk of a change in vocal quality after the surgery and that he failed to do so, constituting negligence.

SUB-ISSUES

1. Was a potential voice change a substantial and material risk that would require express disclosure prior to surgery?
2. Did Dr. Practice have a duty to disclose the risk of a voice change?
3. Was the pamphlet in Dr. Practice's office sufficient to notify Roxy and Penelope Pushy of the potential risk to Roxy's voice?
4. Can the Pushys prove that the surgery caused the change in Roxy's voice?
5. Was Roxy Pushy a reasonably prudent patient or did her conduct or that of her mother contribute to the result?
6. If the Pushys had been told of the risk of the voice change, would they have had the surgery anyway?

CONCEPTS

1. Burden of proof.
2. Credibility of witnesses.
3. Doctrine of informed consent.
4. Applicable standards in the medical community/duty of care.
5. Reasonably prudent patient/ contributory negligence.
6. Materiality of risk.
7. Proximate cause.

LAWS

1. Informed Consent - The doctrine of informed consent imposes a duty on a physician to advise the patient of the nature of his illness and the possible risks of any proposed treatment so that the patient may make an informed decision concerning the course of treatment.
2. A physician must disclose to a patient such information as will enable the patient to make an evaluation of the nature of the treatment and any attendant substantial risks, as well as of available options in the form of alternative therapies.
3. Plaintiff must show that defendant failed to comply with the applicable standards for disclosure and that such failure was the proximate cause of plaintiff's injury. Plaintiff must show lack of informed consent caused surgery to be performed and that the surgery performed caused the injury.
4. In determining whether defendant complied with disclosure requirements, "prudent patient/materiality of risk" standard is applied. A physician must disclose all information "material" to a reasonable prudent patient's treatment decision. A risk is material if a reasonable patient, in what the physician knows or should know to be the patient's position, would be likely to attach significance to the risk in deciding whether to forego the proposed procedure or submit to it.
5. Negligence - Under tort law, negligence is established if the following four elements are shown: (1) the existence of a duty on defendant's part to conform to a standard of conduct and protect plaintiff from unreasonable risk of injury; (2) the defendant breached that duty; (3) the breach is the actual and proximate cause of the injury and (4) plaintiff suffers damage or injury.
6. Plaintiff must show by a preponderance of the evidence that: (1) defendant had a duty to disclose the risk under applicable standard of care; (2) defendant deviated from the standard of care regarding disclosure; (3) failure to inform was the proximate cause of the injury and (4) said deviation caused plaintiff's injury.

BIBLIOGRAPHY

Mock Trial Exercises for Grades Three through Six. New Jersey: New Jersey State Bar Foundation, 1999 and 2000.

Mock Trial Exercises for Grades Seven and Eight. New Jersey: New Jersey State Bar Foundation, 1999 and 2000.

Special thanks to Ellen Torregrossa-O'Connor, Esq., for her assistance.

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FACTS

On December 23 at 7:30 p.m., flight 211 began its approach for landing at Newguardia International Airport. Air traffic was heavy that day due to the upcoming holiday. Flight 211 was nearing a gasoline crisis and asked for permission to land immediately. Air Traffic Controller Sleep A. Lott gave flight 211 permission to land and began the process of rerouting aircraft to give them priority landing. During its final approach, Sleep A. Lott passed out due to his narcoleptic condition. A fellow air traffic controller took over flight 211 and safely landed the aircraft. There were no injuries on the 737 with 150 passengers aboard. Following the incident, Sleep A. Lott revealed to his superiors that he suffers from narcolepsy, a sleeping disorder. Three days after this incident, Sleep A. Lott was fired from his position as an air traffic controller.

ISSUE

Can Sleep A. Lott be fired from his job as an air traffic controller because of his narcoleptic disability?

WITNESSES

For the Plaintiff
Sleep A. Lott, air traffic controller
U.R. Rong, expert in narcolepsy

For the Defendant
U. Luz, airport manager
Dr. Smart T. Pants, expert physician diagnosing and treating disabilities

WITNESS STATEMENTS

Testimony of Sleep A. Lott
My name is Sleep A. Lott. As you already know, the airport has fired me from my job as air traffic controller. I suffer from a disability called narcolepsy. I was diagnosed with it when I was 16 years old. My longest episode was 25 minutes; the normal time for an episode is two to three minutes. This was my only incident at work since I began working for the airport. That is what happened on the night of December 23. I believe that the airport fired me because of my narcoleptic condition. I have been a loyal and trusted employee for the last eight years. I have a good record and have had numerous raises and promotions since I began working for the airport back in 1992. This was the first narcoleptic incident I have experienced while on the job.

What makes me believe that the airport fired me due to this disorder is a memo that was brought to my attention by Mr. U. Luz's secretary. We sit at the same lunch table sometimes. During one of our lunchtime conversations, she asked me if I knew of anyone with a disease called narcolepsy. I asked her why and she told me that that she saw a memo from her boss firing an employee because of some disease that he had. The memo went on to say that this employee almost killed a planeload of passengers. I am very private about my condition, but I managed to say that I was that person!

Testimony of U.R. Rong
Sleep A. Lott was diagnosed with a sleep disorder called narcolepsy at the age of 16. His seizures last an average of two to three minutes. As all experts in the field know, narcolepsy can be treated with medication. Usually a mild dose of amphetamines will do the trick.

There is no reason to believe that Sleep A. Lott cannot work at any job that he wishes to. Narcoleptics hold a variety of jobs. And, in fact, it would be wrong to single him out just because of his disability.

Testimony of U. Luz
I have been the president of this airport for the last 15 years. We have never had a problem like this before. On December 23 I received a report that Mr. Sleep A. Lott had fallen asleep while landing an aircraft. There have been rumors going around that the reason he was let go was because of his disability. That is absolutely not so. He was let go because of poor performance and tardiness. This airport follows all state and federal laws relating to the hiring and firing of employees.

Testimony of Dr. Smart T. Pants
It is clear that this man cannot function in this position as an air traffic controller. Because of his disorder, he cannot be put in positions that create a lot of stress. Stress is one of the triggers of narcolepsy. He should be moved out of his current job since no treatment is 100 percent successful.

As an expert in the field, I could not be held responsible for the lives of those passengers traveling through this airport. No medication or treatment can guarantee that a narcoleptic incident will not happen.

INSTRUCTIONS

The plaintiff must prove by a preponderance of the evidence that his position as an air traffic controller was terminated because of his disability and that the defendant made no attempt to make sufficient accommodations to place the plaintiff in another job within the airport.

SUB-ISSUES

1. Is passenger safety a legitimate reason to dismiss an individual who might put passengers in imminent danger?
2. Should the airport make a reasonable accommodation for the air traffic controller?
3. Should the air traffic controller have disclosed his health record to his employer?
4. If he had disclosed his health record, could the airport have refused him employment?

CONCEPTS

1. Burden of proof.
2. Reasonable accommodation.
3. Rights of the employee vs. passenger safety.

LAW

1. N. J. S. A. 10:5-4.1. The Law Against Discrimination (LAD) outlaws unlawful employment discrimination against any person by reason of age, ancestry, atypical hereditary cellular or blood trait (AHCBT), liability for service in the Armed Forces of the United States, color, creed, handicap, marital status, national origin, nationality, sex, genetic information, refusal to submit to genetic testing, refusal to provide genetic information, or race of that person, or of that person's spouse, partners, members, stockholders, directors, officers, managers, superintendents, agents, employees, business associates, suppliers or customers.
2. N. J. S. A. 10:5-4-14:4. The LAD does not prohibit discrimination against handicapped employees where the employer can demonstrate that even with reasonable accommodation, the handicap would make employment in a particular job hazardous to the safety or health of the handicapped employee or others. An employer's determination to that effect must be based upon an objective standard supported by individualized factual or scientifically validated evidence, and not general assumptions.

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FACTS

Betty Thanu is an eighth-grade student at Moundville Middle School. She has been a starting pitcher on the school softball team since fifth grade. However, during the off-season after sixth grade, Betty experienced a series of fainting spells and was diagnosed with low blood sugar. Betty's doctor and parents kept her out of team sports in seventh grade until the problem was under control. Her doctor's treatment included the use of steroids, and soon the fainting spells stopped. In eighth grade, Betty was back on the softball team as a star pitcher. The school nurse, Mrs. Rosa Commoshun, knew about the fainting spells and that Betty was under a doctor's treatment for the problem. Mrs. Commoshun did not know about the steroid treatments because Betty's parents decided not to share this information with the school. The school nurse also had a daughter, Sika Commoshun, who was in the team's pitching rotation.

After a very successful season, the Moundville Middle School's softball team found themselves in the league championship game. After pitching a perfect inning, Betty Thanu was called off the mound by her coach, Mr. George Goodpik, and replaced by Sika Commoshun. A scout for Prospect Hill College Preparatory School was at the game looking for candidates for a softball scholarship. He was especially interested in Betty Thanu since she was an excellent student as well as a top athlete. However, two weeks after the game, Betty found out that Sika Commushun had been offered the scholarship instead.

It seems that after the first inning of the big game, Mrs. Rosa Commoshun had a conversation with Coach Goodpik, informing him that Betty Thanu should not be playing because she was using steroids.

Betty's parents are suing Mrs. Rosa Commoshun for misusing confidential health information in a way that caused damage to Betty's reputation in school and resulted in the loss of the scholarship.

ISSUE

Did the school nurse, Mrs. Rosa Commoshun, obtain or use Betty Thanu's confidential medical information in such a way as to violate Betty's personal rights?

WITNESSES

For the Plaintiff
Betty Thanu, age 13
Ida Ceanit, a teammate

For the Defendant
Rosa Commoshun, school nurse
George Goodpik, softball coach

WITNESS STATEMENTS

Testimony of Betty Thanu
When I enrolled at Moundville Middle School as a fifth grader, I was excited about trying out for the softball team, the Cyclopses. I told the coach, Mr. Goodpik, that I had been taking pitching lessons for two years. He was pleased to hear this since his two best pitchers had moved on to high school. I pitched well during tryouts and made the varsity team. I started as pitcher in many games, and we won third place in our league. The next year I pitched even better and our team earned second place.

That's when my problem with fainting spells began. I wasn't allowed to play sports at all in seventh grade until my doctor found a way to control my fainting. Eventually my low blood sugar condition responded to treatment with a medication containing steroids.

In eighth grade, I was back pitching for the softball team. We made it all the way to the league championship game, and I was throwing my best game ever. I didn't know it at the time, but a scout from the prep school I wanted to attend next year was checking me out for a possible scholarship.

Even though I struck out all three batters, Coach Goodpik took me off the mound and put in Sika Commoshun instead. He didn't tell me why.

The next day it was all over school that I was on steroids. Two weeks later, my teammate, Sika, got a letter congratulating her on winning the scholarship to Prospect Hill Prep. When my parents questioned Coach Goodpik about his decision to take me out of the championship game, he told them that the school nurse, Mrs. Rosa Commoshun, informed him that I was taking dangerous steroids and should not be allowed to play. My parents are suing Mrs. Commoshun for obtaining very confidential health information and using it against me in order to get the scholarship for her own daughter. Mrs. Commoshun also started false rumors about my medical treatment that ruined my reputation in the whole community.

Testimony of Ida Ceanit
I also play for the Moundville Middle School Cyclopses. During our championship game, when I was at bat, I got hit by a pitch on my hand. It wasn't too serious so the coach told me to go to the locker room to get an icepack. While I was in the locker room, I saw Mrs. Commoshun. She was looking through Betty's things. I don't think she saw me, but I clearly saw her holding up a small, brown plastic bottle and reading the label. Whatever was in that bottle was none of Mrs. Commoshun's business because it was in Betty's personal gym bag. When I was back on the bench, I saw Mrs. Commoshun call Coach Goodpik over to the dugout for a conversation. That's when Betty came out of the game and Sika went in. Whatever Mrs. Commoshun said, it certainly was not good for Betty.

Testimony of Rosa Commoshun
I have been the school nurse at Moundville Middle School for four years. Before that I worked at Moundville Elementary School. I like to keep a close eye on my own daughter, Sika, because of all the peer pressure.

Most of the students get their sports physicals from the school doctor in my office. However, Betty Thanu always brought in a physical form filled out by her personal physician. Since Betty had a few fainting spells in school, I knew she was being treated for this problem in seventh grade. However, I wasn't informed that her doctor was treating the problem with steroids. This is the sort of information that any responsible parent would want to share with the school nurse.

On the day of the championship game, I went into the locker room at the end of the first inning to find my daughter's water bottle. Sika never remembers to drink enough fluid when she is excited. That's when I accidentally stumbled across Betty's steroids. Betty's gym bag is exactly like Sika's so I unzipped the wrong bag. I was shocked with what I found, but my first impulse was to inform the coach that Betty had prescription steroids in the locker room. Whether or not she should be playing school sports while taking such powerful drugs is not for me to say, but I certainly wasn't comfortable with the idea of steroids in the girls' locker room.

I never told Coach Goodpik that he should put my daughter in the game, and I certainly didn't think she would be getting a scholarship offer. Besides, how can I be responsible for any of the decisions made by the scholarship committee at Prospect Hill Prep School? Betty's parents should never have kept her treatment a secret from the school or the coach.

Testimony of George Goodpik
I do my best to be fair and to look out for the safety of all the young people I coach. At the time Mrs. Commoshun first discovered the steroids in the locker room, I had no idea Betty was taking such powerful medicine. I also had no idea that steroids could be used to treat low blood sugar. All I could think about was my responsibility to keep dangerous drugs away from my athletes. I took Betty out of the game and put Sika on the mound because at the time it seemed like the responsible action to take. Although Mrs. Commoshun did come to tell me what she found, she did not give me any advice about how to handle the situation. She certainly didn't tell me who should pitch. Everyone knew about the scout watching the game, but I can't believe the scholarship decision was made based on only one game.

INSTRUCTIONS

The plaintiff must prove by a preponderance of the evidence that Mrs. Rosa Commoshun violated the right to privacy regarding medical information and used it in a way that harmed Betty Thanu's public reputation and limited her opportunity to obtain the scholarship.

SUB-ISSUES

1. Was Rosa Commoshun deliberately searching Betty's gym bag?
2. Had Rosa Commoshun recently contacted Betty's personal physician to pump him for information about her treatment?
3. Did Betty's parents have a right to keep their daughter's steroid treatments a secret from the school nurse and the coach?
4. Did Betty lose the scholarship because she was benched during the championship game?
5. Why did Betty have her prescription medicine in the locker room?

CONCEPTS

1. Confidentiality between doctor and patient.
2. Professional ethics.
3. Credibility of witnesses.
4. Preponderance of evidence.
5. Proximate cause.
6. Direct proof verses circumstantial evidence.

LAWS

1. Doctors and other health professionals must protect the confidentiality of their patients' health information. It is unethical to disclose information without the consent of the patient.
2. School law: Public school boards of education may make rules and set policy to ensure the safety of all students. This includes disciplining students who break school policies concerning drug use or possession on school property.

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FACTS

Hubert P. Jones was hired for G&G Business and Co. in 2002. Five years later in 2007, a law was passed so that all workers in the United States had to take a genetic screening test. The results of the tests were given to the employers of the people. The information was given to the companies so that the companies could prepare for their absences. The law stated that the information could not be used to discriminate against workers.

On February 17, 2007, the president of G&G Business and Co., Jack Thompson, fired Mr. Jones because he didn't get the business' most important advertising program of the year off on time. Mr. Jones argues that he was fired because of his genetic screening information, which showed that in the next four months he would have major heart problems. Plus, he had been the head of four other major advertising projects that had increased the company's profits for the four years he worked there by 17 percent. Half of the people on the advertising project were fired, 68 percent of which had a predicted health problem from the genetic screening.

ISSUE

Did Jack Thompson fire Hubert P. Jones because his genetic screening test said he was going to have major heart problems or because Mr. Jones was behind on the advertising project?

WITNESSES

For the Plaintiff
Hubert P. Jones, employee of G&G Business and Co.
Dan Jan Itor, janitor at G&G Business and Co.

For the Defendant
Jack Thompson, owner/president of G&G Business and Co.
Igor Schmatzkin, worked with Mr. Jones on the advertising project

WITNESS STATEMENTS

Testimony of Hubert P. Jones
My name is Hubert P. Jones. I have been working for G&G Business and Co. for almost five years with 2002 being my first. In 2007, the government passed a law that permitted all employees to have a genetic screening test. All the information was to be given to both the employees and to the president of the company, in this case, Jack Thompson. The main reason for these tests was so they can plan for the days of the workers' absences, not to discriminate against employees.

When I got my results back from the doctor, the test showed that I was to have a major heart problem within the next four months. On February 17, 2007, I was fired because the most important advertising project wasn't set off on time. I argued because Mr. Thompson never told me when to have it finished. I believe I was fired because of my test results.

Testimony of Dan Jan Itor
My name is Dan Jan Itor. I am the janitor at G&G Business and Co. In my perspective, Hubert P. Jones was the hardest worker at G&G Business and Co. and I see no reason why Hubert P. Jones was fired. One day, as Jack Thompson was reviewing the test results of Hubert P. Jones, I happened to overhear him talking to someone else in his office. I could not make out whom it was that he was talking to, but I heard Hubert P. Jones' name come up several times in this conversation. The next day, Hubert P. Jones was fired from G&G Business and Co.

Testimony of Jack Thompson
My name is Jack Thompson. My grandfather owned G&G Business and Co. for about 35 years until he handed it down to me when I graduated from Yale University in 1972. In 2002, I hired Hubert P. Jones as head of a major advertising project. The U.S. Government passed a law that all employees were required to have genetic screening tests. I got the employees' results back and started planning the absences for the employees. Mr. Jones said things were going well on the project. Later I found out that he had lied and was behind. I had no choice but to fire him. The results of his test were not why I fired him.

Testimony of Igor Schmatzkin
My name is Igor Schmatzkin. I am an employee at G&G Business and Co. I have been an employee here for at least four years. Hubert P. Jones is my fellow employee, whom I worked with on the advertising project of the year. He is very lazy and slacked off most of the time. When we were working on the advertising project that Mr. Thompson said was very important and to get done as soon as possible, Mr. Jones would not do any of the work. He would lie to Mr. Thompson by saying we were almost done when we weren't. I started reporting this information to Mr. Thompson because I was getting tired of doing everything and getting paid the same amount as Mr. Jones when he did nothing! I believe Mr. Thompson was right by firing Mr. Jones for not working.

INSTRUCTIONS

Mr. Jones must prove that Mr. Thompson fired him because of his genetic screening test.

SUB-ISSUES

1. Was Hubert P. Jones really suing for genetic discrimination, or was that just a chance at revenge because he was fired?
2. Was Igor Schmatzkin's testimony against Hubert P. Jones truthful or did he just hold a grudge against Hubert?
3. Did Dan Jan Itor hear facts that string together in the conversation or just different bits of different sentences?

1. Credibility of witnesses.
2. Circumstantial evidence vs. direct evidence.

LAW

A person is required to take a genetic screening test. The results that are given to the employers can then be used to prepare for their absences and are not to be used to discriminate to fire or not hire an employee.

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FACTS

On April 16, 2000, Nita Memento went down the shore to Springtown, New Jersey, for her first spring break vacation. She was staying with a friend at the family's beach house. Nita decided to get a memento of her spring break, and when she saw Bobby's Beach Tattoos, she thought she might get a tattoo. Bobby Botched and Paul Partner are joint owners of the tattoo store. They have been in business for 10 years. Nita went into the store with her friend; she looked around and saw a small tattoo of a heart with 2000 written inside. The tattoo cost $50; she had enough money so she decided to get the tattoo on her shoulder.

When Nita went home the following week, the shoulder with the tattoo started itching. She finally told her mother, who immediately called the doctor. Dr. Zappit, a tattoo removal expert, told them to come to her office right away. Once she had examined the infected area, Dr. Zappit recommended that the tattoo be removed because there was a serious infection. Dr. Zappit removed the tattoo and treated Nita for a number of follow-up visits. The medical bill came to $2,000.

Mrs. Memento feels that Bobby Botched was responsible for the infection and is suing him for malpractice. She also believes that since Nita was only 16, the tattoo should never have been applied in the first place. The law clearly states that anyone under 18 must have parental consent.

Mr. Botched claims that he followed all safety procedures and that Nita completed a consent form. Therefore, he is not responsible for the medical expenses.

ISSUE

Did Mr. Botched knowingly violate the law regarding the application of tattoos? Is he responsible for Nita's medical problem and consequently her medical expenses?

WITNESSES

For the Plaintiff
Nita Memento, a 16-year-old student
Dr. Zappit, a dermatologist specializing in laser surgery and tattoo removal

For the Defense
Bobby Botched, a tattoo artist and the owner of Bobby's Beach Tattoos
Paul Partner, an associate of Bobby Botched and a receptionist at Bobby's Beach Tattoos

WITNESS STATEMENTS

Testimony of Nita Memento
My friend and I planned a vacation to her family's beach house in Springtown, NJ during spring break. On April 16, we went for a walk along the boardwalk. I wanted something to remember the vacation, and as we walked we came to Bobby's Beach Tattoos. I thought I would get one. At first it was a bit of a joke, but then I saw a small heart with 2000 written inside; I really liked it and decided to get it. I asked the man at the counter how much it cost and he said $50. I had enough money so I went ahead and got it.

When I got home a few days later, the area around the tattoo got itchy and red. I finally told my mom, and she was really upset, especially when she saw how infected it was. She called a dermatologist and got an appointment right away. Dr. Zappit said that the tattoo should be removed. She said that the infection was probably caused by an allergic reaction to the dye.

I had to go through a painful laser surgery and even now I still have a scar. I didn't know it would be so painful to have a tattoo removed. I also didn't know that you could get an allergic reaction to a tattoo. I certainly didn't know you had to be over 18 in order to get a tattoo. Lots of my friends have tattoos and they are not over 18. Mr. Botched should have explained this to me. If I had known, I would never have gotten a tattoo.

Testimony of Dr. Zappit
My name is Dr. Zappit. I am a dermatologist specializing in laser surgery and tattoo removal. On April 24, 2000, I received a call from Mrs. Memento. She was extremely upset. Her daughter, Nita, had an infected tattoo. I told Mrs. Memento to bring her daughter in for a consultation immediately. When I examined Nita's shoulder, I could see that there was an infection. It probably was due to an allergic reaction to the dye. Some allergic reactions respond to medication. Unfortunately, Nita's was quite serious and I recommended removal. Nita underwent laser surgery, and the tattoo was removed. There is a slight scar remaining that will require further surgery to remove.

I explained to Mrs. Memento and to Nita that this is all too common; young people get tattoos without being made fully aware of the risks involved.

Testimony of Bobby Botched
My name is Bobby Botched. I run a tattoo store, Bobby's Beach Tattoos, on the boardwalk in Springtown, NJ. I have owned the store for the past 10 years. The tattoo business has grown over the last 10 years. I have expanded my business and now have an associate, Paul Partner.

I remember spring break 2000. We were very busy. It seemed that a lot of the college kids wanted tattoos that week. I run a very professional store; I make sure everyone reads and signs a consent form before I will allow them to have a tattoo applied. The consent form clearly says you have to be 18 to get a tattoo. I also have lots of pamphlets about tattoos and the risks involved. These pamphlets have information on allergic reactions, how to care for your tattoo and tattoo removal. These are offered to all my customers. I want them to be informed. I use the latest equipment and always make sure that it is properly sterilized.

I had no idea that Nita Memento had any problems until I received a call from her lawyer saying I was being sued for malpractice. I know that I did nothing wrong. Nita had an allergic reaction to the ink dye. She should have gone to a doctor right away. If she had, a simple antihistamine could have solved the problem. Instead, it was left untreated and became infected. That was not my fault. Nita must accept responsibility for the tattoo once she leaves my store.

Testimony of Paul Partner
I am Paul Partner. I work with Mr. Botched at Bobby's Beach Tattoos. I remember that spring break was a very busy time for us. It seemed that everyone on the boardwalk wanted a tattoo. We often had lines of people waiting. My job is to make sure all the customers read and sign a consent form that says they understand the risks involved. This form also says that you have to be 18 in order to get a tattoo. I also offer them pamphlets on tattoos to read and ask them if they have any questions or concerns.

Nita signed the forms and didn't have any questions so I sent her into the tattoo room where Mr. Botched works. Everything went well, and Nita was happy with her new tattoo. I gave her a pamphlet when she was leaving on "How to Care for Your Tattoo."

For the first couple of days, it is important to take good care of the tattoo. The pamphlet also says that if there is any itching around the tattoo site, a doctor should be called immediately because it could be a sign of an allergic reaction. Nita just said thanks and stuffed it in her bag. I don't know if she ever read it.

We do everything we can to make sure our customers are fully aware of all the risks. We can't be held responsible once the customer has left the store.

INSTRUCTIONS

The plaintiff must prove by a preponderance of the evidence that Bobby Botched's actions (or lack of action) resulted in an injury to Nita Memento.

SUB-ISSUES

1. Did Mr. Botched have a duty to Nita Memento?
2. Did Mr. Botched breach that duty?
3. Did Nita Memento suffer as a result of her tattoo?
4. Did Mr. Botched cause Nita's suffering?
5. Was Nita Memento properly informed about the risks of tattoos?
6. Did Bobby's Beach Tattoos have a policy of informing their customers about tattoos?
7. Did Nita Memento consent to having a tattoo?
8. Can a minor give consent?
9. Did Nita Memento lie about her age?
10. Did Bobby's Beach Tattoos check for proof of age?
11. Did Nita Memento assume a risk when deciding to get a tattoo?
12. Is Mr. Botched responsible for Nita Memento's medical problems?
13. Is Nita Memento responsible for her medical problems?

1. Malpractice.
2. Assumption of risk.
3. Informed consent.
4. Contributory negligence.
5. Burden of proof: preponderance of the evidence.
6. Credibility of the witnesses.

LAWS

1. Professional malpractice occurs when a person practicing his or her profession improperly performs (or fails to perform) the duties of that profession, and someone is injured as a result.
2. Negligence is conduct that falls below a legally established standard of care that must be met in order to protect others from an unreasonable risk of harm.
3. Informed consent means that the professional has told the customer about the nature of the treatment or procedure that will be performed, the risks of that treatment or procedure, and that after considering all of that information, the customer agrees to the prescribed course of action.
4. Assumption of risk is knowingly and willingly exposing oneself to the possibility of harm.

BIBLIOGRAPHY

"Professional Malpractice Law,"from West Legal Directory online at www.excite.lawoffice.com.

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FACTS

Dee Pressed, a senior and an excellent student at County Best Academy, had hoped to attend Einstein University, (EU) a small, private liberal arts college nestled in the hills of the Watchung Mountains of New Jersey. EU has become a very popular school in the last 10 years. As a result, an increasing number of students have been applying. Dee applied early in November of 2000, as she knew an early application process would improve her chances of getting in. The Academy's guidance office encouraged Dee to apply and assured her that her achievements would secure her a place at this prestigious college.

Dee's application process included a lengthy essay, several forms about her academics and interests, a health history to be completed by a physician and an interview on the campus. After completing all the necessary paperwork, Dee was invited for her interview. The admissions counselor who conducted the interview was very impressed by Dee's resume and gave her every reason to believe that she would be accepted to this school. Dee's convincing record included a score of 1230 on her SATs, her position as yearbook editor, and salutatorian of her graduating class. She also was involved with many community service activities. Dee Pressed was told that she would hear through the mail on or about March 21, 2001.

On March 21, sure enough, the mail from EU arrived. To Dee's dismay, she was denied admission to the college. Upon hearing of other area students admitted to EU, Dee became suspicious and questioned the school about her rejection. While EU would not give her any more information, she did learn that several people with lesser qualifications, lower GPAs, and fewer activities had received letters of congratulations of admission to EU.

Dee Pressed, with the help of her parents, tried to make an appointment with the Dean of Admissions to discuss the reasons for their actions, but the admissions office refused to help her.

Dee then went to discuss her problem with her therapist, Dr. Cy Kiatrist. Finally she learned that EU had contacted Dr. Kiatrist about her health history, which had been provided already. Although Dr. Kiatrist gave no further health information, he indicated that the school requested information about her genetic predisposition to depression. He hinted to Dee that the school had a concern about her mental state, but he would not elaborate and kept the proper confidentiality required of him.

Dee Pressed is now suing Einstein University for using her health history and genetic makeup to discriminate against her by denying her admission to the college. Dee Pressed is suing for admission to EU with tuition reimbursement for having to attend a second-choice college while awaiting the outcome of this case. She is also suing for the therapist bills which she incurred because of the embarrassment surrounding this situation.

ISSUE

Did Einstein University use information about Dee Pressed's health history and genetic makeup to discriminate against her and thereby deny her admission to this school of higher learning?

WITNESSES

For the Plaintiff
Dee Pressed
Dr. Cy Kiatrist

For the Defense
Dean of Admissions at Einstein University
Justin Credible, student also denied admission

WITNESS STATEMENTS

Testimony of Dee Pressed
My name is Dee Pressed. I am now 18 years old. I worked very hard in school all my life to get into a good college. My high school guidance counselor assured me that Einstein University was a safe school for me. The admissions counselor who interviewed me at EU also assured me that I met all the criteria to be admitted. I was yearbook editor for my high school. I was salutatorian. I scored 1230 on my SATs. EU wouldn't even meet with my parents and me to explain their reason for not accepting me. I know I applied early enough, and I know I completed all the essays and forms.

The only possible explanation is that the school is discriminating against me for my health history of being treated for depression. It is no secret that I am a patient of Dr. Kiatrist's for my genetic predisposition to depression. I do not have a condition that interferes with my schoolwork or my social life. EU has labeled me unhealthy for their college environment with no sound reason. I have been denied admission based on discrimination. It is still my hope and dream to attend EU.

Testimony of Dr. Cy Kiatrist
I am bound by confidentiality not to reveal specifics of Ms. Pressed's treatment, but she is a patient of mine and she has given me consent today to speak about her situation. Dee first came into my office four years ago. I saw her regularly for two years, but then as her self esteem and confidence grew, her visits became less frequent. We meet only twice a year now to discuss how she is doing. I have had no reason to worry that Dee Pressed would be unable to handle anything that came her way.

Einstein University contacted me to confirm Dee's medical history, which

I did. Never before has a university called upon me in this way. I added no information to what Dee had already told them. She was up front about her therapy and had nothing to hide. Receiving therapy is quite common today, especially in one's teenage years.

Dee is not a threat to herself, nor is she a threat to anyone around her. Dee would be an asset to any school that is fortunate enough to have her attend.

Testimony of Dean of Admissions at Einstein University
Ms. Pressed is incorrect. Her denial of acceptance to our school had absolutely nothing to do with her health history. We did not discriminate against her for a genetic predisposition to depression or any other medical condition.

Our school has become very popular with students from this area. We have been trying to accept students outside of New Jersey, which forced us to cut down on numbers of students from this area. What Ms. Pressed does not understand is that we actually accepted 500 fewer freshmen from New Jersey this year than last year. We are overcrowded. It does not help EU to have a school which cannot accommodate the students. Increasing numbers from outside of state caused us to reduce our New Jersey numbers more than before. Ms. Pressed's health history was not used against her.

There are many things a school must look at when deciding to offer a student acceptance. We are in the business of accepting students. We don't go out of our way to hurt anyone. Dee had excellent grades; that is true. Unfortunately, Dee lacked leadership experience. For example, she was not involved with student government, clubs or sports. Dee did not participate in any extracurricular activities at her high school. EU looks for well-rounded students because these are the students that make our university as special as it is. We want our students to take advantage of the many opportunities on our campus.

As far not making an appointment with Mr. and Mrs. Pressed to explain our decisions, that is our policy as stated in our applications materials. There just isn't time or staff to fulfill such requests. Due to her disappointment, Dee is reading too much into her denial.

Testimony of Justin Credible
My name is Justin Credible, and I also wanted to attend Einstein University. I was also among the many from New Jersey who were not accepted.

My academic work was excellent. My SAT scores were over 1300. Not only was I president of my class, I was also captain of the football team and played trumpet in the concert band. I had the academic, extracurricular and leadership requirements all wrapped up.

When I went to EU for my interview, I was told that my high school success guaranteed me a spot in EU's next freshmen class. I was anxiously awaiting my letter of congratulations, but it never came. On March 21, like many others, I received the "we're sorry, but" letter. I was shocked.

I cannot cry discrimination. I do not have a psychiatric medical history to use as an excuse for being turned away. I handled it maturely and went to my second-choice school, where, thankfully, I have been very happy.

INSTRUCTIONS

The plaintiff must prove by a preponderance of the evidence that Einstein University used her health history and genetic makeup to discriminate against and thereby deny her admission to the school.

SUB-ISSUES

1. Should EU have contacted Dr. Kiatrist?
2. Did EU request too much medical information in their application process?
3. Was the high school guidance counselor too optimistic?
4. Did the admissions interviewer go beyond the scope of her job?

1. Burden of proof; preponderance of the evidence.
2. Credibility of witnesses.
3. Discrimination.
4. Availability of health history and genetic makeup information.

LAW
Equal Admissions Opportunity
(EAO) Law: This law makes it illegal to discriminate in any aspect of the admissions selection process of public, private or parochial schools, colleges, or universities including: (1) preschool children "applying" for entrance into private or parochial preschools; (2) elementary school children "applying" for entrance into private or parochial schools; (3) high school students applying for entrance into private or parochial schools; (4) college students applying for entrance into public, private or parochial institutions of higher learning; (5) recruitment and (6) testing. Such discrimination (treating people differently through prejudice) includes genetic makeup, age, mental health issues, disabilities, race, gender, ethnic group, religion and anything else deemed appropriate by the EAO Administration.

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FACTS

Patient Ima N. Labore went into labor on January 13, 1999 at 6:48 p.m. The obstetrician on staff, Dr. Bob Myers, was called and came in 30 minutes late. He was the only obstetrician Ms. Labore would allow to deliver her child. The nurse-in-training, A. Lone, was forced to deliver the child. Twenty-five minutes after the call was made to Dr. Myers, a student nurse on duty, A. Lone, SN, had delivered the child. Five minutes later, Dr. Bob Myers arrived. Despite the problems with the delivery (the umbilical cord was wrapped around the child's neck), the baby's pediatrician was not called until 8:47 p.m. The baby was born with respiratory distress and, then because the obstetrician did not help the child, she had brain damage. Because of the brain damage, the child needs lifelong care.

ISSUE

Did Dr. Bob Myers and/or student nurse A. Lone fail to follow accepted medical practices in delivering Ima N. Labore's child?

WITNESSES

For the Plaintiff
Ima N. Labore
Dr. Noah Tall

For the Defense
Dr. Bob Myers
A. Lone, student nurse

WITNESS STATEMENTS

Testimony of Ima N. Labore
Good day, my name is Ima N. Labore. I had been going to Dr. Bob Myers for five years before January 13, 1999. I have never had a problem going to this obstetrician until I went into labor with my fifth child. Dr. Myers failed to show for the delivery. After a few minutes, the student nurse on duty, A. Lone, was forced to deliver my child. This student nurse was inexperienced and in training.

When my child was born, although I had no idea at the time, she had respiratory distress. A. Lone, SN called Dr. Myers when I went into labor, but not when my child had respiratory distress. Nobody was called.

Testimony of Noah Tall Ph.D.
Hello, my name is Noah Tall, Ph.D. Ima N. Labore hired me to do the claims of her lawsuit. The damages in this case are loss of companionship for the mother, and the child will never enjoy life. Mei Lungstoppin N. Labore (infant) will suffer economic loss because she will never work. In addition, Mei will need lifelong care.

This is a case of medical malpractice because Dr. Bob Myers failed to show for the delivery of Ima N. Labore's child. A. Lone, SN attempted to deliver Ima's child without assistance, and in doing this, she did not follow accepted medical procedures.

If you were to add up all the claims of this case, this would be a $25 million case.

Testimony of Dr. Bob Myers
My name is Dr. Bob Myers. I was called at 5:28 p.m. on January 13, 1999 for Ima's delivery. At that time, I was in another room delivering a life-or-death case for another one of my patients. If I had left to deliver Ima's baby, then the other child would have died. I made sure that the student nurse, A. Lone, who was supposed to watch the delivery, was with Ms. Labore just in case. After 15 minutes, when I was in the other delivery room, I received the call that Ms. Labore was about to deliver. I went back to Ms. Labore's room after another 15 minutes to find that A. Lone had delivered the child on her own. She told me that the delivery had gone fine, and I briefly checked the child for injuries, for that was the pediatrician's job, and I left. I made it clear to A. Lone that I was only briefly checking the child, and that she should call the pediatrician.

When I was talking to Ms. A. Lone, she told me that when the child was born, the umbilical cord was wrapped around her neck, but Ms. A. Lone had quickly unwrapped it. She also said that the baby appeared fine, and that she had NOT called the pediatrician. I rushed to the child's room, and realized that she had permanent brain damage now, and had respiratory distress. I tried to explain this to Ms. Labore, but she would not try to understand. She was very relieved, and thought her child had been delivered fine. The situation was far too complicated for her to understand at the moment.

Testimony of A. Lone, SN
On January 13, 1999, I was in the delivery room with Dr. Bob Myers. He was called to deliver another child; I do not know why the other doctor was not in his room. Fifteen minutes later, our patient went into labor. I was just there to watch the delivery, to get hands-on experience in order to graduate from nursing school.

I also did not know what to do when Ms. Labore refused to have another obstetrician deliver her child.

I delivered the child to the best of my abilities. Even so, during the process, I was confused. Twenty minutes after the delivery was over, Dr. Myers arrived in Ima's delivery room.

I tried as hard as I could, but I am only a student nurse.

INSTRUCTIONS

Plaintiff must prove by a preponderance of the evidence that the obstetrician and/or student nurse on duty failed to follow accepted medical practices and, as a direct and proximate cause, the plaintiffs suffered damages in injury and financial loss.

SUB-ISSUES

1. Did Dr. Bob Myers fail to follow accepted medical practices by arriving at the delivery late?
2. Is A. Lone, SN liable for damages by failing to follow accepted nursing practices by attempting to deliver the baby without assistance?
3. Is Ima responsible for her child's injury by unreasonably refusing another doctor?
4. The standard of practice by which a physician's conduct is to be judged must be furnished by expert testimony of someone trained or qualified to testify on medical subjects. Therefore, is Dr. Noah Tall, Ph.D. qualified to testify as to what conduct constitutes standard medical practice?

1. Burden of proof: preponderance of the evidence.
2. Credibility of witnesses.
3. Expert testimony.
4. Baby never will enjoy life, care will be required, child will never work and the mother has a loss of companionship.

LAWS

1. Negligence is the failure to comply with the standard of care required by law to protect a person from foreseeable risks of harm. Malpractice is the failure to obey the standard of care required by law in the care and treatment of patients. Usually it is necessary for expert witness testimony to determine the standard of care.
2. A plaintiff who is awarded a verdict is entitled to fair and reasonable compensation for any permanent or temporary injury resulting in disability or impairment of his/her health, faculties, or ability to participate in activities as a direct cause of the defendant's wrongdoings. Disability and injury includes compensation for the inability to go through with normal daily pleasure and enjoyment.
3. If the plaintiff or both of the defendants were negligent and proximately caused injury, then the negligent conduct or fault of the parties must be compared in percentages. Attribute to each of them the percentage that describes or measures the negligence in the happening of the accident. The percentage must add up to 100 percent.
4. Jurors should not speculate or guess about the standards by which the defendant physician(s) should have conducted himself/herself/ themselves in the treatment of the plaintiff. You must determine the applicable medical standard from the testimony of the expert witness.

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FACTS

Jim Socks entered R.U. Hert Hospital for knee surgery. As part of the pre-admissions procedure, Jim Socks completed an admissions form, met with an admissions nurse, was informed of his patient rights and signed a waiver. Mary A. Doktor was the admissions nurse. On the day of surgery, Jim Socks met the anesthesiologist, Dr. D. Nie, who interviewed Jim to verify the pre-admission information. Dr. D. Nie administered spinal anesthesia based on the information provided by Jim Socks and the patient chart. Following surgery, Jim Socks failed to regain use of his lower extremities and is permanently paralyzed from the waist down. Jim Socks is suing the hospital, admissions nurse and anesthesiologist, alleging that their incompetence in taking pre-admissions information resulted in his paralysis.

ISSUE

Were Mary A. Doktor and Dr. D. Nie negligent in failing to verify the accuracy of the information necessary for determining the correct dosage of anesthesia?

WITNESSES

For the Plaintiff
Jim Socks, plaintiff
Dr. Rich Mann, chief of anesthesiology, W.E. Healum Hospital

For the Defense
Mary A. Doktor, admissions nurse, R.U. Hert Hospital
Dr. D. Nie, anesthesiologist, R.U. Hert Hospital

WITNESS STATEMENTS

Testimony of Jim Socks
I was scheduled for knee surgery at R.U. Hert Hospital. Before surgery, I had an appointment for a pre-admissions interview and testing. The admissions nurse was Mary A. Doktor. I was the last patient of the day. I filled out a questionnaire about my health history. Mary A. Doktor reviewed my answers with me. She said that I needed to have my height and weight taken, but the digital scale needed repair. She made a note that my height and weight should be checked upon admission. She explained the procedure and its risks. She also explained my patient rights. I signed a waiver stating that I knew the consequences of the anesthesia and the operation itself. The waiver also protects my rights as a patient and does not release medical personnel from the consequences of malpractice.

The day of the surgery, I was admitted as an ambulatory, same-day surgery patient at R.U. Hert Hospital. Dr. D. Nie asked me questions about my general health, height and weight. I was not measured nor was I weighed before surgery. In the operating room, the anesthesiologist used a spinal anesthesia in my lower back. That was the last thing I remembered before I woke up - not being able to move my lower body. When the effects of the anesthesia did not wear off, it was apparent that I was paralyzed from the waist down.

As a stockbroker on Wall Street, I commuted into New York every day by taking the Path train to the World Trade Center and then walking about 10 blocks. I was very pleased with my job and was doing quite well, earning about $90,000 a year. After this incident, I found the commute almost impossible with my disability and I had to find another job locally, where I am not making nearly as much money as I was. This is especially hard on my wife and two children. As a man in my mid-30s, this has restricted me from participating in family activities and spending recreational time with my children.

I am suing for the amount of $12 million. This will cover the medical expenses related to treatment of the paralysis and modifications to my house such as building ramps inside and outside of my house, and also lowering appliances and light switches.

Testimony of Dr. Rich Mann
I am the chief anesthesiologist at W.E. Healum Hospital. I have been chief for 13 years and have published several papers on the administration of spinal anesthesia. I was called in as a consultant on this case after Jim Socks was admitted for treatment of postoperative paralysis following surgery at R.U. Hert Hospital.

I took a history from Jim Socks and was concerned that his height and weight had not been measured before surgery. I had Jim weighed using a certified scale. I contacted Dr. D. Nie and requested the dosage records. The dosage Dr. D. Nie said he gave to Jim was clearly more than he should have based on Jim Socks' actual weight. The weight recorded on Jim Socks' chart was 15 pounds more than his actual weight. The dosage was at least 30 ml more than recommended and was sufficient to have caused permanent nerve damage and paralysis.

Testimony of Mary A. Doktor
I am the admissions nurse that took the medical history from Jim Socks. I reviewed the information that he provided and informed him of the risks of surgery. He understood all of the possibilities and signed the waiver. I wasn't able to weigh and measure Jim Socks because the digital scale was not working. Instead I asked Jim Socks to verify his height and weight and checked them against an earlier admissions record. I figured since Jim was an adult, he probably hadn't grown. Jim neglected to tell me that he had been working out and may have lost weight. I made a note on his chart that he should be weighed and measured upon admission before surgery.

Testimony of Dr. D. Nie
Jim Socks was admitted to the ambulatory surgery unit for knee surgery. I met Jim Socks for the first time on the day of the surgery. I reviewed his medical history that included respiratory problems and decided that he was a candidate for spinal anesthesia. I explained the procedure and calculated the dosage based on the height and weight recorded on his chart. The dosage was correct for the data entered on his records. Jim Socks' paralysis would only be my fault if he were paralyzed as a result of the anesthesia being injected incorrectly. I followed the manufacturer's recommended dosage based on the information that I had. I assumed that the recorded height and weight had been taken upon admission since the chart had an entry from the admissions nurse regarding the need for verification. When I asked Jim his height and weight, his answers matched the chart entries.

INSTRUCTIONS

The jury must decide whether the defendant has, by a preponderance of the evidence, proven that R.U. Hert Hospital, Mary A. Doktor and Dr. D. Nie were negligent in providing treatment to Jim Socks and that their negligence caused his paralysis.

SUB-ISSUES

1. As a patient, did Jim Socks have a responsibility to provide accurate information to the admissions nurse?
2. As a patient, did Jim Socks have a responsibility to ask if his height and weight would be measured before surgery upon admission to the ambulatory care unit?
3. Did Dr. D. Nie have a responsibility to verify that Jim Socks' height and weight had been measured?

1. Responsibility of medical personnel to follow a standard of care in provision of medical treatment.
2. Responsibility of the patient to provide accurate information to medical personnel.
3. Credibility of witnesses.
4. Definition of medical malpractice.
5. Preponderance of the evidence.

LAW

Malpractice is negligence. Negligence is conduct that falls below a standard of care required by law for the protection of persons or property from foreseeable risks of harm. Negligence may result from the performance of an act or failure to act. The signing of a waiver by the patient does not protect the doctor and/or nurse from the consequences of malpractice.

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FACTS

In June 2001, after graduating first in his class at Fansford Medical School, 28-year-old Gene Poole applied for a residency at Hans-Jopkins Teaching Hospital in New Jersey. Having concentrated his studies in the area of neuroscience at Princetone University, Gene yearned for one of the three highly sought after positions in the department of neurosurgery at Hans-Jopkins.

After all applications were submitted and the interviews conducted, it was widely rumored that Gene had won the most prestigious of the three residency spots. The only hurdle that remained was a routine physical. After easily passing the physical exam, the doctor conducting the physical examination asked Gene to voluntarily submit to a blood test. This test was newly employed by the hospital to identify any genetic information that the physical had not detected. Gene quickly agreed to the test in the hopes of expediting that process.

Two weeks later, Gene received a letter stating that the blood test had revealed a dominant gene for Huntington's Disease (HD). This disease causes the gradual degeneration of the nervous system and progressive dementia. All of these symptoms are caused by the continual loss of brain cells; these symptoms usually begin at the age of 30. The disease is fatal and has no known cure.

Three weeks after receiving the results, Hans-Jopkins Hospital informed Gene that he was not selected for the residency. Gene Poole is suing Hans-Jopkins Teaching Hospital for discrimination.

ISSUE

Did Hans-Jopkins discriminate against Gene Poole on the basis of his testing positive for the (HD) gene in violation of New Jersey's Law Against Discrimination?

WITNESSES

For the Plaintiff
Gene Poole, medical student who was not admitted to residency program at Hans-Jopkins
Dr. Tess Tube, professor at Fansford Medical School

For the Defendant
Dr. Hugh Cranium, director of admissions for the residency program at Hans-Jopkins
Dr. Kate Scan, director of research at the Institute of Neurological Studies in New York

WITNESS STATEMENTS

Testimony of Gene Poole
My name is Gene Poole and I am 28 years old. I recently graduated from Fansford Medical School at the top of my class with a 4.0 grade point average. As an undergraduate, I attended Princetone University as a pre-med major, graduating summa cum laude. After graduating from Fansford Medical School, with the highest recommendations from my professors at Fansford, I applied for a residency at Hans-Jopkins Teaching Hospital in the neurosurgery department. Although there were other candidates, I was very hopeful that I would obtain one of the three available resident positions in the neurosurgery department.

I, along with several other candidates, interviewed for the resident position. The interview went very well, and at every stage of the process, I was more or less told that the position was mine. I just needed to go through a physical examination.

The physical examination revealed no abnormalities whatsoever. The physician conducting the exam told me that they were taking blood in order to test for any genetic propensities, but needed my permission. It seemed more or less routine, so I agreed. I knew that my father did have Huntington's Disease, but at the time of the testing, I truly believed I had secured the position and the test was a formality so I did not consider the possibility that I possessed the HD gene. Two weeks later, I received a letter in the mail from Hans-Jopkins stating that I had a dominant gene for HD. I am concerned about this genetic predictor, but I do not see how it should affect my admission as a resident. I was at the time of the physical, and remain today, in perfect physical health. My credentials are impeccable. I have been working extremely hard for many years pursuing my lifelong dream of being a neurosurgeon. I feel that Hans-Jopkins discriminated against me because of the results of this genetic test.

Testimony of Dr. Tess Tube
My name is Dr. Tess Tube, and I am a medical school professor at Fansford Medical School. Gene Poole was one of the most talented students I have ever taught. In addition to his superior intellectual abilities, he is extremely dedicated to the study of neuroscience and is obviously striving to become a significant member of the relatively small community of neurosurgeons in this country. I recommended Gene for the residency at Hans-Jopkins with the utmost confidence that he would be an asset to the staff and eventually a leader and pioneer in the area of neuroscience.

I am greatly disturbed that such a gifted individual was rejected for a resident position simply due to results from a genetic test that showed a propensity for Huntington's Disease. I say this not only because I know Gene Poole personally, but also because I have treated and studied neurological diseases such as HD for nearly 30 years. I have written articles on HD and have investigated the precise genetic test used in Gene's case. The test merely showed that he would have a 50 percent chance of developing HD. Gene has not developed any symptoms, and even if he did acquire the disease, no one can pinpoint with certainty when it would strike, or the degree and speed of its progression. Because of Gene Poole's genetic test results, the hospital awarded the residency to a student who was third in my class. While this student is certainly competent, I must state my belief that Gene is the better candidate.

Testimony of Dr. Hugh Cranium
My name is Dr. Hugh Cranium. I am the director of admissions for the residency program at Hans-Jopkins. In June 2001, Gene Poole applied for acceptance into the residency program at our hospital. There were only three positions open; therefore, the competition to acquire these desirable spots was high. We could only accept those who were fully qualified and showed a true commitment to the profession. Having determined that Gene Poole did not meet the admission requirements, we rejected him from the residency program.

I believe that the decision not to accept Gene Poole to the program was and remains in the best interest of the hospital, the doctors and the patients. The field of neurology is one in which the practitioners are highly trained. Residency at Hans-Jopkins includes six years of increasing responsibility beginning after a one-year internship. This includes five years of residency and 12 to 18 months of expanded training. Six to 12 months of the expanded training period is spent in research and six months in clinical activity as assistant in neurosurgery. The five years of residency training include seven six-month clinical rotations and 18 months of laboratory research. The residents are cultivated and molded for the profession, and a lot of time, effort and resources are put into their education.

In the case of Gene Poole, I do not dispute that he had excellent academic credentials. However, this was only one aspect of the evaluation process. Much weight is also given to the interview process. In this phase, each of the four interviewers noted a degree of arrogance and/or irritability in Mr. Poole's demeanor, particularly when questioned about his abilities. The other applicants, on the other hand, were respectful, eager and very much in earnest.

I understand that Gene Poole maintains that we rejected him from the program based solely upon the results of the genetic test. While I dispute this, I feel compelled to state my belief that our residency department should be permitted to factor in such results when evaluating candidates.

Given the lengthy and progressive nature of our six-year training program, we must consider the long-term potential of each candidate. We train and groom our residents with expectations that they will join this medical staff and employ their special skills for our hospital. When given advanced notice of any potential threat to a candidate's longevity with our hospital, we would be foolish to ignore it.

In the case of Gene Poole, if he were to develop HD, as he has a 50 percent chance of doing, he would become ill during his residency. As sympathetic as this institution may be to Mr. Poole's position, it would be an undue hardship on this hospital to invest in his training. Ironically, an individual with the neurological disease HD could not function as a neurosurgeon. Two of the early symptoms of the disease are irritability and involuntary movements, symptoms that would greatly impair his ability to function professionally.

I continue to believe that my decision is for everyone's benefit and although the hospital and I deeply sympathize with Mr. Poole, we cannot provide him with the residency he seeks.

Testimony of Dr. Kate Scan
My name is Dr. Kate Scan. I am the director of research at the Institute of Neurological Studies of New York. I have been practicing medicine for 35 years and have been involved in the study of neuroscience for over 25 years. I have published many articles in the Journal of Neuroscience, and for the past seven years, have held the position of president of the American Academy of Neuroresearchers. I have concentrated my studies on Huntington's Disease, specifically its early detection and treatment. Huntington's Disease (HD) is classified as a fatal neurological disorder, characterized by symptoms such as violent, uncontrollable movements and repetitious fidgeting. Other physical symptoms include difficulty speaking and swallowing. The disease also causes progressive depression, delusions and hallucinations. The gene for HD is dominant. Therefore, children of people who have this disease have a high chance of inheriting the disease. A gene mutation on the fourth of 23 pairs of chromosomes causes HD. A person who has HD carries the defective gene on one of the two copies of chromosome four. Patients with HD generally develop symptoms between the ages of 30 and 40 although they can appear earlier or later. The rapid involuntary movements and other symptoms of HD are caused by the progressive loss of brain cells.

I have been working on the testing for HD for several years. I am very well aware of the reliability of the tests because I developed many of the procedures myself in conjunction with the genetic research department of our institute. The test for HD involves a small sample of blood or a smear of saliva. The sample is then screened for HD DNA and the HD mutation is readily detectable when present. The accuracy of the blood test is 98 percent compared to 86 percent when the saliva test is given. A year ago, Hans-Jopkins Hospital awarded a sizable grant to our institute to further develop this test.

Hans-Jopkins performed this exact test on Gene Poole during the application process. The test revealed the HD mutation, which means that he has a 50 percent chance of developing HD in his 30s. The fact that his father already has the disease further supports the results. In my professional opinion, the test results conclusively show that Gene Poole has a genetic predisposition for developing Huntington's Disease.

INSTRUCTIONS

The plaintiff, Gene Poole, must prove by a preponderance of the evidence, the greater weight of credible evidence, that he was qualified for the residency position, but that defendant denied plaintiff the position, awarding it to a similarly or less qualified candidate, based upon genetic information revealed during the application process.

SUB-ISSUES

1. Has Hans-Jopkins Hospital offered a legitimate, non-discriminatory reason for its decision to reject Gene Poole for the resident's position?
2. Is Hans-Jopkins's claim that Gene Poole did not perform well in the interview process merely a pretext for discrimination based upon genetic makeup?
3. Was Gene Poole, with his genetic predisposition for Huntington's Disease, "qualified" for a long-term residency program?
4. Is it an undue hardship to Hans-Jopkins to devote substantial resources to training Gene Poole in light of his potential health limitations?
5. Did Gene Poole meet his burden of showing that the position went to a similarly or less qualified candidate?

1. Burden of proof - preponderance of the evidence.
2. Burden shifting.
3. Credibility of witnesses.
4. Discriminatory vs. non-discriminatory purpose.
5. Balancing issue of advanced technology vs. right to personal privacy.

LAWS

1. N.J.S.A. 10:5-12 provides in pertinent part:
   It shall be an unlawful employment practice, or, as the case may be, an unlawful discrimination:
1. For an employer, because of race, creed, color, national origin, ancestry, age, marital status, affectional or sexual orientation, genetic information, sex or atypical heredity cellular or blood trait of any individual,... to refuse to hire or employ or to bar or to discharge or require to retire, unless justified by lawful considerations other than age, from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment....
2. Under the three-step process for proving discrimination in violation of the Laws Against Discrimination (LAD), plaintiff first carries the burden of establishing by a preponderance of the evidence the elements of a prima facie case of discrimination which requires proof:
1. that plaintiff is a member of a class protected by the LAD;
2. that plaintiff was qualified for the position;
3. that plaintiff was denied that position and
4. that another with the same or lesser qualifications got the job.
3. Next, the defendant employer has burden of coming forward with non-discriminatory, legitimate reasons for the particular employment action.
4. Finally, plaintiff must prove that the non-discriminatory reason offered by defendant employer was in truth a mask for improper discriminatory intent.

BIBLIOGRAPHY

Mock Trial Exercises for Grades Three through Six. New Jersey: New Jersey State Bar Foundation, 1999 and 2000.

Mock Trial Exercises for Grades Seven and Eight. New Jersey: New Jersey State Bar Foundation, 1999 and 2000.

Special thanks to Ellen Torregrossa-O'Connor, Esq., for her assistance.

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FACTS

Lawrence Mason is a junior at Springbrook High School. He has Tourette's syndrome with coprolalia, which is the inability to control the usage of inappropriate language. He also has an exceptional talent for playing soccer. Because of a sprained ankle, he was unable to play for Springbrook's school team at the beginning of the season. When the county championships began, Lawrence Mason was better and was able to participate. The championship was being played between Springbrook High School and Greendale High School.

As the game was beginning, Lawrence heard his coach tell the coach of Greendale and the referee that he was a special ed kid. He therefore needed special considerations so he should not be carded. Lawrence alleges that he heard the Greendale coach tell his players that he needed special considerations due to Tourette's syndrome so he would not be carded for inappropriate language. As the game intensified, Lawrence was unable to control his usage of inappropriate language. Despite his swearing, he was not carded or taken out of the game. His opponents resented his special treatment and one of them started to use the same language as Lawrence. Since the player did not have an excuse, he was immediately carded and removed from the game.

The Greendale team was forced to play one man short and began to lose the game. They blamed it on Lawrence and mocked him until he ended up in tears and had to leave the game. His own teammates were angry with him for quitting the game because he was their best player. He became even more upset, went home and did not return to school. Lawrence Mason's family is suing the Greendale Board of Education for discrimination, a violation of privacy and the trauma caused by it.

ISSUE

1. Was there discrimination against Lawrence Mason or a violation of a student's right to privacy? If yes, go to number 2.
2. If there was discrimination, did it cause harm to the plaintiff?
3. If the answer was yes to numbers 1 and 2, what are the damages?

WITNESSES

For the Plaintiff
Lawrence Mason
Dr. John Harrison, psychiatrist and expert witness

For the Defense
Douglas Papmar
Dr. Evan Michael Craft, psychiatrist and expert witness

WITNESS STATEMENTS

Testimony of Lawrence Mason
My name is Lawrence Mason and I have Tourette's syndrome. I have had Tourette's for six months now and I am coping with this condition with the help of medication and my psychiatrist. I have been a student at Springbrook High School for three years. To my knowledge, all the teachers are informed of my condition. A while ago, I filled out an application to try out for the soccer team. I was elated at the chance to prove what a good player I was. I turned in my application and went to get the physical. I was approved for the team and I had a pretty good preseason. Then, I sprained my ankle and I could not play until the end of the season. The championship game was soon approaching and I practiced with great intensity.

During the first half of the game, I lost control and I started to use bad language. Fortunately for me, I had told my coach of my special considerations so I was not punished. Before the game, I overheard my coach tell the other coach and the ref that I was a special ed kid and needed special considerations so I should not be carded. The Greendale coach, Douglas Papmar, called his team to huddle up. Since I was about 20 feet away, I could hear Douglas Papmar tell his team that I had Tourette's syndrome.

During the second half of the game, the Greendale kids mocked me really badly. I was stunned that a teacher would tell his team that I had Tourette's. I was so upset that I started crying uncontrollably and had to leave the game. Then, even my own teammates started calling me names. I think they were mad because I was their best player. I went home without even waiting for the end of the game. I have been really depressed ever since, and I have not been to school. I am being home-schooled now, but that is better than the abuse I get for something that I cannot control.

Testimony of Dr. John Harrison
My name is John Harrison. I have been practicing psychiatry in Scotch Plains for 17 years and have been associated with Overlook Hospital. I graduated from Johns Hopkins University as well as medical school and had a residency at New York University Hospital. My fellowship in psychiatry was at Saint Barnabas in West Orange.

I have been working with Lawrence Mason for six months since the onset of his Tourette's syndrome. Initially, he had a very difficult time adjusting to the disease. The Diagnostic and Statistical Manual of Mental Disorders, fourth edition, defines Tourette's syndrome as a multiple tic disorder that waxes and wanes. It may include coprolalia in the small percentage of cases already described. Two to three in 100 people get Tourette's syndrome. Of these people with Tourette's, only 30 percent get coprolalia. Coprolalia is the involuntary use of inappropriate language that occurs as part of the disease. Coprolalia will be more difficult to control when the patient experiences increased stress. If it is controlled, it will manifest itself excessively when the patient eventually loses control. Unfortunately, Lawrence Mason has coprolalia.

I began seeing Lawrence Mason weekly and I prescribed Haldol for him. Haldol is an antipsychotic drug that has some success controlling the negative symptoms of coprolalia. Through counseling and drugs, he has coped with this very difficult time more easily.

On November 11, 2000, Lawrence Mason called me in great distress. He had been playing in a championship soccer game where he was one of their star players. He told me that he reminded his coach about his Tourette's syndrome just before the game. He heard his coach telling the opposing coach and the ref that he was a special ed kid and needed special considerations. He should not be carded. Then he heard the opposing coach tell his boys that he had Tourette's syndrome and could not stop the usage of inappropriate language. They just had to ignore it and play on.

Lawrence was able to control his coprolalia for the beginning part of the game. But then the stress and pressure mounted and he lost control. During the second half of the game, one of the Greendale team members swore repeatedly. He was then carded and removed from the game. Playing one team member short, Greendale started losing the game. Then the Greendale team tormented him to a point that he could not stop crying so he left the field to sit on the sideline. When he did that, his own team members started mocking him as well. By the time he got home that evening, he was experiencing severe hysteria so I met him at my office at 9 p.m. It took me two hours to calm him to a point where he could return home.

To my knowledge, he has not returned to school since November 11, 2000, and is being home-schooled. In my professional opinion, he is clinically depressed and fearful of any peer interaction. His participation on the soccer team has been his way of maintaining some normalcy, and he now perceives that his team affiliation is lost.

It is my opinion that the violation of privacy by Douglas Papmar and ensuing harassment by members of his soccer team has made a significant and negative impact on his ability to deal with his disease. If his condition does not improve, my professional opinion is that he will have to be hospitalized.

Testimony of Douglas Papmar
I am Douglas Papmar, the coach of the Greendale High School soccer team. I have been the coach of the team for the past 23 years. On November 11, 2000, we played the second championship game in three years,but we were unsuccessful. About 10 minutes before the game, Handi Kolcraft, the coach of the Springbrook High School soccer team, confronted me and the ref. He told me that a player on his team, Lawrence Mason, was a special ed kid and needed special considerations. Give him a break and do not card him. I decided that since I was the coach of a high school soccer team, my team was mature enough to handle knowing that someone needed special considerations. Therefore, I told my team that Lawrence Mason needed special considerations and could not control any inappropriate behavior. Before halftime, Lawrence Mason began swearing, but was not carded. Even though the team knew he needed special considerations, they were becoming restless.

At halftime, my kids started to complain about him and that he was not carded. They felt that it was unfair for him to swear so much and not be penalized. When they went back to play in the second half, one of my players started using the same kind of inappropriate language. He was carded and instantly removed from the game. My team was one person short, and we began to lose the game. They harassed Lawrence pretty badly until he left the game and returned to the sideline.

This is varsity sports. The kids rag each other for less than this. The deal is that I never said that Lawrence Mason had Tourette's syndrome. I never told my boys.

Testimony of Dr. Evan Michael Craft
My name is Dr. Evan Michael Craft. I am an experienced psychiatrist, having practiced for 16 years. My undergraduate degree was earned at Yale University. I was graduated from Albert Einstein School of Medicine, served my internship, residency and advanced psychiatric specialization at Albert Einstein Hospital, where I also received a special award for Best Medical Fellow. Currently, my practice is located in Waterview, New Jersey. I specialize in family theory and treat many cases of Tourette's syndrome. I am very familiar with this disease and coprolalia, which accompanies it about 30 percent of the time.

I first met Lawrence Mason on January 4, 2001, when I was called by the Greendale Board of Education to assist them in a lawsuit against their soccer coach. I have reviewed all of Lawrence Mason's medical and special service records and have met with him upon four separate occasions. My expert opinion of this patient is that he was no worse off preceding the November 11, 2000 championship game than he was after that time.

His school records clearly show that he had missed an enormous amount of school since the onset of Tourette's syndrome six months before. Specifically, he missed 29 days. School records also show two to three counseling sessions a week with relevant school staff when he did attend school. A sharp decrease in grades and extracurricular activities was also noted. His medical records show that Dr. John Harrison was treating him weekly. Dr. Harrison had also prescribed Haldol, an antipsychotic drug commonly employed to treat this disease with very good success. Lawrence Mason's record demonstrates many adjustment problems since the onset of this disease.

It is my professional opinion that this unfortunate incident did not create his depression and fear of school, but that it was present before the championship game. I cannot support the parent's opinion that any occurrences during this game and resulting verbal teasing are responsible for his presumed condition.

INSTRUCTIONS

The plaintiff must convince the jury that the sphere of privacy only extended from the boy's coach to the referee and no further.

SUB-ISSUES

1. Once the disclosure of Tourette's syndrome goes beyond Lawrence Mason's own coach, is there any issue of privacy?
2. Does Coach Douglas Papmar have the right to tell his team about an opposing player's Tourette's syndrome?
3. Is violation of a special education student's right to privacy discriminatory?

1. Special education laws protecting student privacy.
2. Credibility of witnesses.

LAWS

1. Ensure that all students with disabilities as defined in this chapter, including students with disabilities who have been suspended or expelled from school, have available to them a free, appropriate public education as that standard is set under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C.&1400 et seq.).
2. Ensure that the rights of students with disabilities and their parents are protected: p. 1, Chapter 14 Special Education, New Jersey Administrative Code, Title 6A Education.
3. Parents have a right to give consent or refuse to give consent to share their child's records with anyone who does not have an educational or legal purpose in seeing them. The school district must obtain parents' written consent before any personally identifiable information about their child may be released to any person not otherwise entitled by law to have access to it. Parental Rights in Special Education, New Jersey State Department of Education, p. 13.

BIBLIOGRAPHY

www.mentalhealth.com/book/p40-gtor

www.tourettesyndrome.net

www.tourettesyndrome.net/tourette

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FACTS

Emily D. Anzur started dancing at the age of four at the Pink Ribbon Academy of Dance. At the age of six, she was diagnosed with juvenile osteoporosis. Her doctor told her that exercise would be good for children with juvenile osteoporosis. He also said that dancing was a good form of exercise, just as long as she was careful. Emily's parents encouraged her to keep on dancing so she did.

Pink Ribbon Academy of Dance competes every year and usually places in the top three places in regional competition. Emily won first place when she performed a solo in the competition. She was 14 at the time.

During the summer of 2000, at the age of 15, Emily auditioned for the prestigious Jersey Ballet Academy. She wanted to go the JBA ever since she was 10 years old. On the audition form, Emily filled in that she had juvenile osteoporosis in the "Health History" section. After her audition, Emily received a letter from the school saying that while she was one of the more talented applicants, the school administration could not admit her into the school based on her health history.

Emily and her parents are suing the Jersey Ballet Academy for discrimination based on her health history.

ISSUES

Is it legal for the Jersey Ballet Academy to discriminate based on an applicant's health history?

WITNESSES

For the Plaintiff
Emily D. Anzur
Gette DePointe, Emily's dance teacher at the Pink Ribbon Academy of Dance

For the Defense
I.M. DeOner, the owner of the Jersey Ballet Academy
Weehav Talent, artistic director of the Jersey Ballet Academy

WITNESS STATEMENTS

Testimony of Emily D. Anzur
My name is Emily D. Anzur and I am 15 years old. I have been taking ballet classes for the past 11 years. When I was six years old, I was diagnosed with juvenile osteoporosis. My doctor told me that I could participate in any activity that I choose, but I have to be careful. He informed me that I should keep dancing because exercise would be good for my bones, and my parents agreed.

I tried out for the Jersey Ballet Academy this past summer, hoping to enter the academy in the fall. After tryouts were over, I got a letter from the academy. It stated that while I was one of the more talented ballet dancers, they would not let me join because they claimed that they feared for my health and did not want to see me injured. By not letting me into their school, JBA is discriminating against me because of my health condition. I have never experienced any major pain or injury while dancing. My parents and I have agreed that if I am talented enough, it should be my decision whether or not I attend JBA. My disease shouldn't prevent me from attending JBA since it will not affect my performance.

Testimony of Gette DePointe
I work at the Pink Ribbon Academy of Dance and I have been teaching Emily since she was four years old. Even then, she was the best in her class. Ever since Emily was 10 years old, she has talked of attending the Jersey Ballet Academy. This has been her goal. I have never had a student who worked so hard or trained so much for an audition!

Emily is a great dancer as well as a hard worker! She was the youngest ever on our school's competition team. Emily was nine at the time, but she kept up with the other girls, all of whom were two or three years older than she. That year, her class won all the local competitions and several national competitions as well. When Emily was 13, her class came in first in three national competitions. Emily performed several solos that year, and everyone loved her! She won medals in many of the numbers in which she had performed. She continued to perform solos in almost all her dances in the years following. Many of the girls from that class have moved on to more prestigious schools. Two of them now attend the American Ballet Academy in New York. Emily can do everything that the other dancers can. She is truly an amazing dancer.

Emily's condition never stopped her from dancing. She was never injured in my class. In terms of health, she seemed the same as the other dancers. She never complained about any pain while dancing, and I don't believe she experienced any.

Emily's condition doesn't affect her ability to perform. It shouldn't keep her from attending the Jersey Ballet Academy. She has excellent turnout and extension, and is a great dancer with national and regional medals to prove it! She is as talented as any girl you would choose, and deserves a spot in JBA!

Testimony of I.M. DeOner
My name is I.M. DeOner, and I have been the owner of the Jersey Ballet Academy for the past 20 years.

Because of Emily's health condition, I feel that it is my obligation to say that attending this school would not be the best decision for her to make. The classes that the dancers have to go through are extremely strenuous, and because of her bone predicament, Emily is much more liable to be injured than any of the other dancers.

I will also be honest in saying that our school's reputation is at stake. We are known as one of the most prestigious ballet academies in the country, and most of our students go on to become professional dancers. Our space is limited, and we'd rather fill the 20 spaces available with students with no disabilities. If such an injury happened on our school property, our school's reputation could be tarnished. Why risk such a situation if it could be avoided? We are not in any way discriminating against Emily. We believe that it would be in everyone's best interest if she did not attend our school. She may have determination, but many dancers also have that quality. Emily may have won many medals in national competitions, but so have many other dancers. It's not fair that our resources or our instruction should be given to someone who will never go on to become a professional dancer.

We do not think that JBA is the place for Emily. It's not discrimination, but in her own best interest.

Testimony of Weehav Talent
My name is Weehav Talent and I am the artistic director/choreographer at the Jersey Ballet Academy. I have been teaching there for about 15 years.

While it is certainly true that Emily has talent, there are also many other young dancers out there that dance just as well. Emily was only one out of hundreds of young dancers trying out for the 20 available spots in our school, and there were just too many good dancers besides her. We have a very good reputation that our school must maintain, and the way that we do that is to send out excellent dancers from our school to the dance companies throughout the country. As a ballet choreographer, I can tell you that some of the dances that several companies perform are extremely difficult, and only the most talented and capable dancers are able to perform in them.

Emily has determination and willpower, but aside from her health problems, I really don't think that she is any better than any of the other dancers that tried out for our school and were not admitted. When deciding who will enter the school in the fall, we look for more than just talent. We also look to see whether or not the dancer's body can withstand the pressures and pains of dancing. In this case, the administration did not think that Emily met the criteria.

INSTRUCTIONS

Is the Jersey Ballet Academy illegally discriminating against Emily based on her health history?

SUB-ISSUES

1. Should it be Emily's or the school's decision whether her disease will impact upon her performance and participation in class?
2. Is dancing at the Jersey Ballet Academy any more of a risk than dancing at the Pink Ribbon Academy of Dance?
3. Does the Jersey Ballet Academy have a specific policy stating that young dancers with escalated risks of injury cannot attend?
4. Is it only Emily's health history that kept her from being accepted into the Jersey Ballet Academy?

1. Definition of discrimination.
2. Burden of proof.
3. Credibility of witnesses.
4. Definition of disability.

LAW

A public or private company or organization may not discriminate against an individual or a group of people based on disability, unless the disability will harm the person(s) or others, or interferes unavoidably with the function of the company or organization.

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FACTS

Andy Byotic was an active, healthy 11-year-old boy who enjoyed playing with his friends. He had been given amoxicillin as a five-year-old, broke out in hives, had trouble breathing, and was taken off amoxicillin immediately. Although this was actually a mild reaction, his parents were told he should never have amoxicillin again because the reaction could be more serious the next time. Andy had never had an allergic reaction to any drug since then.

On May 4, 2000, Andy was playing baseball in his physical education class at school. He was pitching when he caught a line drive with the bridge of his nose. His nose was crushed and he had a momentary loss of consciousness. He was having difficulty breathing because he had aspirated blood. He was rushed immediately to Calamity General Hospital with his school emergency card, which clearly stated that he was allergic to amoxicillin. Andy's parents, Annie Byotic and Andrew Byotic, Sr., were promptly alerted and met the ambulance at the emergency room (ER).

Andy Byotic arrived at the hospital and was rushed into the emergency room. His emergency card was given to the admissions clerk, who noted his allergy to amoxicillin on his chart. She also showed it to the ER nurse, Constance Kare, who wrote it on Andy's nursing assessment forms. While Andy was being prepared for surgery, oral-maxillofacial (O.M.F.) surgeon, Dr. Ivanna Fixu, came out of the operating room (OR) to talk to Andy's parents. Nurse Kare handed the assessment card to Dr. Fixu. The surgeon asked, "Is there anything else we need to know?" The distressed parents couldn't think of anything except for his allergy to amoxicillin, which they knew was mentioned on the card. Therefore, they sobbed, "No." Dr. Fixu then went into the operating room and Nurse Kare went on to an