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CHAPTER 3

Tort Law—Negligence

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THE COURT WAS APPALLED The plaintiff, while in the custody of the defendant penal institution, alleged that because the defendant’s employees failed to timely diagnose her breast cancer, her right breast had to be removed. The defendant contended that even if its employees were negligent, the plaintiff’s cancer was so far developed when discovered that it would nevertheless have required removal of her breast.1

Pursuant to the defendant’s policy of medically evaluating all new inmates, on May 26, Dr. Evans gave the plaintiff a medical examination. He testified that his physical evaluation included an examination of the plaintiff’s breasts. However, he stated that his examination was very cursory.

The day following her examination, the plaintiff examined her own breasts. At that time, she discovered a lump in her right breast, which she characterized as being about the size of a pea. The plaintiff then sought an additional medical evaluation at the defendant’s medical clinic. Testimony indicated that fewer than half of the inmates who sign the clinic list are actually seen by medical personnel the next day after signing their name. Also, those not examined on the day for which the list is signed are given no preference in being examined on the following day. Their names are simply deleted

IT’S YOUR GAVEL…

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▸ OBJECTIVES OF TORT LAW The basic objectives of tort law are: (1) preservation of peace between individuals by providing a substitute for retaliation; (2) culpability (to find fault for wrong- doing); (3) deterrence (to discourage the wrongdoer [tortfeasor] from committing future wrongful acts, as well as, deter others from committing wrongdoing); and (4) compensation (to indemnify the injured party to a lawsuit).

Compensation for adverse medical outcomes typically takes the form of financial damages. When finding fault, the court must determine who should bear the cost of an unfavorable outcome—the patient-plaintiff or the provider-defendant. The plain- tiff must prove negligence by the defendant. Con- versely, the defendant argues a case to avoid fault determination. Underlying this adversarial proceed- ing is the assumption that when a defendant bears the cost of a negligent act, there will be a decline in similar acts. Although professional liability insurance helps to insulate a provider from financial loss, the fear is ever present that the monetary award may exceed the pro- vider’s coverage limits.

The three basic categories of tort law are (1) neg- ligent torts; (2) intentional torts (e.g., assault, battery, false imprisonment, invasion of privacy, infliction of mental distress); and (3) strict liability, which is applied when the activity, regardless of fault, inten- tions, or negligence, is so dangerous to others that public policy demands absolute responsibility on

Every instance of a man’s suffering the penalty of the law is an instance of the failure of that penalty in effecting its purpose, which is to deter from transgression.

—Richard Whately

▸ LEARNING OBJECTIVES The reader, upon completion of this chapter, will be able to:

■ Describe what a tort is and the objectives of tort law. ■ Define negligence and explain the distinction

between negligence and malpractice. ■ Explain how the commission and omission of an

act differ. ■ Explain the elements necessary to prove a negli-

gence case. ■ Describe the importance of foreseeability in a

negligence case.

This chapter introduces the reader to the study of tort law with an emphasis on negligence in healthcare settings. A tort is a civil wrong, other than a breach of contract, committed against a person (e.g., reputa- tion, privacy), property (real or personal) for which a court provides a remedy in the form of compensa- tion for damages suffered. Tort actions are a concern to caregivers both personally and professionally. Care- givers should be armed with the knowledge necessary to improve their understanding of their rights and responsibilities in the healthcare setting.

from the daily list, and their only recourse is to continually sign the list until they are examined. The evidence indicated that after May 27, the plaintiff constantly signed the clinic list and provided the reason she was requesting medical care.

A nurse finally examined the plaintiff on June 21. The nurse noted in her nursing notes that the plaintiff had a “moderate large mass in right breast.” The nurse recognized that the proper procedure was to measure such a mass, but she testified that this was impossible because no measuring device was available. The missing measuring device to which she alluded was a simple ruler. The nurse concluded that Evans should again examine the plaintiff.

On June 28, Evans again examined the plaintiff. He recorded in the progress notes that the plaintiff had “a mass on her right wrist. Will send her to hospital and give her Benadryl for allergy she has.”2 Evans meant to write “breast” not “wrist.”

He failed to measure the size of the mass on the plaintiff’s breast. The plaintiff was eventually transferred to the Franklin Pre-Release Center (FPRC) on September 28. On September 30, when a nurse at FPRC examined the plaintiff; the nurse recorded that the plaintiff had a “golf ball”-sized lump in her right breast. The plaintiff was transported to the hospital on October 27, where Dr. Walker treated her. The plaintiff received a mammogram examination, which indicated that the tumor was probably malignant. This diagnosis was confirmed by a biopsy performed on November 9. The plaintiff was released from confinement on November 13.

On November 16, Dr. Lidsky, a surgeon, examined the plaintiff. Lidsky noted the existence of the lump in the plaintiff’s breast and determined that the size of the mass was approximately 4 to 5 centimeters and somewhat fixed. He performed a modified radical mastectomy upon the plaintiff’s right breast, by which nearly the plaintiff’s entire right breast was removed. A suit was filed.

WHAT IS YOUR VERDICT?

IT’S YOUR GAVEL… (continued)

42 Chapter 3 Tort Law—Negligence

to inform his or her patient as to the inherent risks, benefits, and alternatives of a proposed treatment or procedure.

▸ FORMS OF NEGLIGENCE The three basic forms of negligence in FIGURE 3-1 are as follows:

1. Malfeasance: Performance of an unlawful or improper act (e.g., performing an abortion in the third trimester when prohibited by state law)

2. Misfeasance: Improper performance of an act, resulting in injury to another (e.g., administering the wrong dose of a medica- tion, wrong site surgery (e.g., removal of a healthy kidney instead of the diseased kid- ney3, removal of the healthy breast instead of the diseased breast4, removal of the wrong leg during surgery5)

3. Nonfeasance: Failure to act when there is a duty to act as a reasonably prudent person would in similar circumstances (e.g., failure to administer medications, failure to order diagnostic tests or prescribe necessary medications)

▸ DEGREES OF NEGLIGENCE The use of the terminology, “degrees of negligence,” more aptly describes three generally accepted “degrees of care” that can affect the amount of damages in a negligence case.

the part of the wrongdoer (e.g., products liability). Negligence is reviewed in the next section.

▸ NEGLIGENCE Negligence is a tort, a civil or personal wrong. It is the unintentional commission or omission of an act that a reasonably prudent person would or would not do under given circumstances.

Commission of an act would include, for example: ■ Administering the wrong medication ■ Administering the wrong dosage of a medication ■ Administering medication to the wrong patient ■ Performing a surgical procedure without the

patient’s consent ■ Performing a surgical procedure on the wrong

patient or body part ■ Performing the wrong surgical procedure

Omission of an act would include, for example: ■ Failure to conduct a thorough history and physi-

cal examination ■ Failure to assess and reassess a patient’s nutri-

tional needs ■ Failure to administer medications as prescribed ■ Failure to order diagnostic tests ■ Failure to follow up on abnormal or critical test

results ■ Failure to conduct a “time out” to insure that the

correct surgical procedure is being performed on the correct patient at the correct site

Negligence is a form of conduct caused by heed- lessness or carelessness that constitutes a departure from the standard of care generally imposed on rea- sonable members of society. It can occur when, after considering the consequences of an act, a person does not exercise the best possible judgment; when one fails to guard against a risk that should be appre- ciated; or when one engages in behavior expected to involve unreasonable danger to others. Negligence or carelessness of a professional person (e.g., nurse prac- titioner, pharmacist, physician, physician assistant) is referred to as malpractice, whereas criminal negligence is the reckless disregard for the safety of another (e.g., willful indifference to an injury that could follow an act).

Thousands of deaths occur each year as a result of medical errors. Although medical errors often involve misdiagnosis, delayed diagnosis, failure to diagnose, surgical errors, and prescription errors, not all med- ical errors are necessarily malpractice. Most medical or surgical interventions involve some degree of risk. It is the responsibility of the treating professional

Forms of Negligence

*Wrongful Act (e.g., performing unlawful late-term abortion) **Improper Performance of an Act (e.g., administering wrong drug dosage)

***Failure to Act (e.g., failure to administer medications)

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FIGURE 3-1 Forms of negligence.

DEGREES OF NEGLIGENCE 43

4. Causation • Departure from the standard of care

must be the cause of the plaintiff ’s injury. • The injury must be foreseeable.

Duty to Care Duty to care is defined as a legal obligation of care, per- formance, or observance imposed on one to safeguard the rights of others. Duty can arise from a special rela- tionship such as that between a physician, nurse, or pharmacist and a patient. The existence of this rela- tionship implies that a caregiver–patient relationship was in effect at the time an alleged injury occurred. In the case of a physician, duty to care can arise from a simple telephone conversation or out of a caregiver’s voluntary act of assuming the care of a patient. Duty also can be established by statute or contract between the plaintiff and the defendant.

Duty to care is depicted in FIGURE 3-3, where the pharmacy manager of General Hospital’s pharmacy, prior to leaving work for the day, assigns responsibil- ity to the pharmacist behind the counter, telling her, “You’re in charge of the pharmacy, which includes the IV admixture room. Your duties and responsibilities are those as described in the pharmacy department policy and procedure manual. I will be leaving in an hour, so you should review them before I leave. If you have any questions after I leave, you can reach me on my cell phone.” This assignment established a duty on the part of the pharmacist to adhere to the policies and procedures in the department manual.

Breach of duty, injury, and causation are further illustrated next under the relevant headings.

1. Slight: Minor deviation of what is expected under the circumstances.

2. Ordinary: Failure to do what a reasonably prudent person would or would not do under the circumstances.

3. Gross: The intentional or wanton omis- sion of required care or performance of an improper act.

▸ ELEMENTS OF NEGLIGENCE The following four elements of negligence (FIGURE 3-2) must be proven in order for a plaintiff to recover dam- ages for negligence. When the four elements of neg- ligence have been proven, the plaintiff is said to have presented a prima facie case of negligence, thus enabling the plaintiff to prevail in a lawsuit. The foundation of the columns in Figure 3-2 illustrates examples of neg- ligent acts. The pillars represent each element of negli- gence that must be proven in order to establish that a negligent act has occurred. Any unproven element of negligence will defeat a lawsuit based on negligence.

1. Duty to care • Obligation to conform to a recognized

standard of care. 2. Breach of duty

• Deviation from the recognized stan- dard of care.

• Failure to adhere to an obligation. 3. Injury

• Actual damages must be established. • If there are no injuries, monetary dam-

ages cannot be awarded the plaintiff(s).

Wrong Site Surgery (e.g., wrong side brain surgery: 3 occasions, same hospital, same year) Wrong Medication Dosage (e.g., Quaid twins given 20,000 units of heparin instead of 20)

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FIGURE 3-2 The four elements of an act of negligence.

44 Chapter 3 Tort Law—Negligence

never occur without due consideration for the patient’s condition. The 19th Judicial District Court directed a verdict for the defendants, and the plaintiffs appealed. The court of appeals affirmed the district court’s deci- sion. On further appeal, the Louisiana Supreme Court held that the evidence presented to the jury could indi- cate the defendants were negligent in their treatment of the victim. The findings of the lower courts were reversed, and the case was remanded for trial.

Hospitals are required to stabilize the patient prior to transfer. In this case, there was a surgeon on call who was available to treat this patient. McCool decided to practice telephone medicine and made the unfortunate decision to transfer the patient, which resulted in risking the life of an unstable patient, lead- ing to his death.

Duty to Treat Emergency Patients In O’Neill v. Montefiore Hospital,7 the duty owed to the patient was clear. Mr. O’Neill had been experiencing pain in his chest and arms. He had walked with his wife to the hospital at 5:00 AM for care. After arriv- ing at the hospital, O’Neill explained his pain. Upon learning that O’Neill was a member of the Hospital Insurance Plan (HIP), the ED nurse stated that the hospital had no connection with HIP. The nurse con- tacted Dr. Graig, an HIP physician, and explained O’Neill’s symptoms. He allegedly suggested O’Neill be treated by an HIP physician later in the morn- ing, at 8:00 AM. The nurse then handed the phone to O’Neill, who said to Dr. Graig, “Well, I could be dead by 8 o’clock.” Following his phone conversation with Dr. Graig, O’Neill spoke to the nurse, indicat- ing that he had been told to go home and come back when HIP was open. Mrs. O’Neill, concerned about her husband, asked that a physician see her husband immediately. The nurse again requested that they return at 8:00 AM. Mrs. O’Neill said he could be dead by 8:00 AM. No help was offered, and the O’Neills left the ED to return home. O’Neill paused occasionally on his way home to catch his breath. Shortly after arriving home, he fell to the floor and expired. The plaintiff sought recovery against the hospital for fail- ure to render necessary emergency treatment and against the physician for his failure and refusal to treat O’Neill. Dr. Graig claimed that he had offered to come to the ED but that O’Neill said he would wait and see a HIP physician that morning.

The New York Supreme Court for Bronx County entered a judgment dismissing the plaintiff ’s com- plaint, and the plaintiff appealed the court’s ruling. The New York Supreme Court, Appellate Division, reversed the lower court’s decision and held that a

Hastings Case: Duty to Stabilize the Patient The surviving parents in Hastings v. Baton Rouge Hos- pital6 brought a medical malpractice action for the wrongful death of their 19-year-old son. The action was brought against the hospital; Dr. Gerdes, the emergency department (ED) physician; and the tho- racic surgeon on call, Dr. McCool. The patient was brought to the ED at 11:56 PM because of two stab wounds and weak vital signs. Gerdes decided that a thoracotomy (an incision into the pleural space of the chest) had to be performed. He was not qualified to perform the surgery and called Dr. McCool, who was on call that evening for thoracic surgery. Gerdes described the patient’s condition, indicating that the patient had been stabbed in a major blood vessel. At trial, McCool claimed that he did not recall Gerdes saying that a major blood vessel could be involved. McCool asked Gerdes to transfer the patient to the Earl K. Long Hospital. Gerdes said, “I can’t transfer this patient.” McCool replied, “No. Transfer him.” Kelly, an ED nurse on duty, was not comfortable with the deci- sion to transfer the patient and offered to accompany him in the ambulance. Gerdes reexamined the patient, who exhibited marginal vital signs, was restless, and was draining blood from his chest. The ambulance service was called at 1:03 AM, and by 1:30 AM, the patient had been placed in the ambulance for transfer. The patient began to fight wildly, the chest tube came out, and the bleeding increased. An attempt to revive him from a cardiac arrest was futile, and the patient died after having been moved back into the ED. The patient virtually bled to death in the ED.

The duty to care in this case cannot be reasonably disputed. Louisiana, by statute, imposes a duty on hos- pitals licensed in Louisiana to make emergency services available to all persons residing in the state regardless of insurance coverage or economic status. The hospi- tal’s own bylaws provide that patient transfer should

FIGURE 3-3 Duty to save.

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ELEMENTS OF NEGLIGENCE 45

friends and family. It is reasonable to antic- ipate that a man of proven moral baseness would be more likely to commit a morally base act on an 80-year-old woman. Fifty-six convictions for theft is some evidence of men- tal aberration. Hopper was employed not only to administer medicine but also to contend with the sometimes erratic behavior of the decrepit. The investigative process necessary to the procurement of a Texas nursing license would have precluded the licensing of Hop- per. In the hiring of an unlicensed and poten- tially mentally and morally unfit nurse, it is reasonable to anticipate that an injury would result as a natural and probable consequence of that negligent hiring.9

Deerings West Nursing Center showed a clear duty of care. The appellant violated the very purpose of Texas licensing statutes by failing to verify whether Hopper held a current LVN license. The appellant then placed him in a position of authority, allowed him to dispense drugs, and made him a shift supervi- sor. This negligence eventually resulted in the inexcus- able assault on an elderly woman.

Duty to Nursing Facility Patient A concise statement of the duty a nursing facility owes to its residents is found in Lagrone v. Helman10 where an action was brought against the operator of the nursing facility for injuries sustained by the res- ident in a fall. The trial court, which rendered judg- ment for the defendant, stated in its instructions to the jury, “It was the duty of the defendants to use reasonable care for the safety of the appellant, consis- tent with her age and physical condition.” The plain- tiff/appellant appealed the trial court’s decision and the Supreme Court of Mississippi affirmed the trial court’s decision. The resident was an ambulatory res- ident in the defendant nursing facility who suffered from cerebral arteriosclerosis, which subjected her to occasional dizzy spells. She had requested med- ication from a nurse employed by the facility and had followed her to the medicine cabinet. There were two conflicting statements as to what occurred next. The plaintiff claimed that, after obtaining the medicine, the nurse suddenly, carelessly, and negli- gently whirled around and struck her, knocking her down and causing her to suffer a fracture of her left hip. The facility claimed that the nurse handed the pill to the plaintiff, who dropped it, and in bending over to pick it up, became dizzy and fell to the floor. Although judgment was entered for the nursing

physician who abandons a patient after undertaking examination or treatment can be held liable for mal- practice. The proof of the record in this case indicated that the physician undertook to diagnose the ailments of the deceased by telephone, thus establishing at least the first element of negligence—duty to use due care. The finding of the trial court was reversed, and a new trial was ordered.

Duty to Hire Competent Employees Texas courts recognize that an employer has a duty to hire competent employees, especially if they are engaged in an occupation that could be hazardous to life and limb and requires skilled or experienced persons. For example, the appellant in Deerings West Nursing Center v. Scott8 was found to have negli- gently hired an employee that the appellant knew or should have known was incompetent, thereby causing unreasonable risk of harm to others. In this case, an 80-year-old visitor had gone to Deerings to visit her infirm older brother. During one visit, Nurse Hop- per, a 6-foot-4-inch male employee of Deerings, con- fronted the visitor to prevent her from visiting. The visitor recalled that he was angry and just stared. She stated that upon his approach, she had thrown up her hands to protect her face, but he hit her on the chin, slapped her down on the concrete floor, and got on top of her, pinning her to the floor.

Hopper testified that he was hired sight unseen over the telephone by Deerings’s director of nursing. Even though the following day, Hopper completed an application at the nursing facility, he still maintained that he was hired over the phone. In his application, he falsely stated that he was a Texas licensed vocational nurse (LVN). Additionally, he claimed that he had never been convicted of a crime. In reality, he had been previously employed by a bar, was not an LVN, had committed more than 56 criminal offenses of theft, and was on probation at the time of his testimony.

The trial court awarded the plaintiff a judgment of $35,000 for actual damages and $200,000 in punitive damages. The court of appeals held that there was suffi- cient evidence to support the findings that the employ- ee’s failure to obtain a nursing license was the proximate cause of the visitor’s damages and that the hiring was negligent and also showed a heedless and reckless dis- regard of the rights of others.

It is common knowledge that the bleakness and rigors of old age, drugs, and the diseases of senility can cause people to become con- fused . . . and cantankerous. It is predictable that elderly patients will be visited by elderly

46 Chapter 3 Tort Law—Negligence

nurses shall be assigned to triage patients and only registered nurses shall be assigned to critical trauma patients.

• • •

(1) The licensed nurse-to-patient ratio in a critical care unit shall be 1:2 or fewer at all times. “Critical care unit” means a nursing unit of a general acute care hospital which provides one of the following services: an intensive care service, a burn center, a coro- nary care service, an acute respiratory service, or an intensive care newborn nursery ser- vice. In the intensive care newborn nursery service, the ratio shall be 1 registered nurse: 2 or fewer patients at all times.

(2) The surgical service operating room shall have at least one registered nurse assigned to the duties of the circulating nurse and a minimum of one additional person serving as scrub assistant for each patient- occupied operating room. The scrub assistant may be a licensed nurse, an operating room technician, or other person who has demon- strated current competence to the hospital as a scrub assistant, but shall not be a physician or other licensed health professional who is assisting in the performance of surgery.

(3) The licensed nurse-to-patient ratio in a labor and delivery suite of the perinatal ser- vice shall be 1:2 or fewer active labor patients at all times. When a licensed nurse is caring for antepartum patients who are not in active labor, the licensed nurse-to-patient ratio shall be 1:4 or fewer at all times.

(4) The licensed nurse-to-patient ratio in a postpartum area of the perinatal service shall be 1:4 mother-baby couplets or fewer at all times. In the event of multiple births, the total number of mothers plus infants assigned to a single licensed nurse shall never exceed eight. For postpartum areas in which the licensed nurse’s assignment consists of moth- ers only, the licensed nurse-to-patient ratio shall be 1:6 or fewer at all times.

(5) The licensed nurse-to-patient ratio in a combined Labor/Delivery/Postpartum area of the perinatal service shall be 1:3 or fewer at all times the licensed nurse is car- ing for a patient combination of one woman in active labor and a postpartum mother and infant. The licensed nurse-to-patient ratio

facility, had the jury accepted the plaintiff 's descrip- tion of the facts, the result might have been liability for the nursing facility on the basis of respondeat superior.

Standard of Care The standard of care describes what conduct is expected of an individual in a given situation. The general standard of acceptable care is based on what a reasonably prudent person would do or not do acting under the same or similar circumstances. The reason- ably prudent person doctrine describes a hypothetical person who is put forward as the community ideal of what would be considered reasonable behavior. One’s age, sex, physical condition, education, train- ing, profession, knowledge, mental capacity, and requirements imposed by law determine the reason- ableness of conduct. Deviation from the standard of care constitutes negligence if it can be shown that the resulting damages are caused by the breach of one’s duty to care.

The courts often rely on the testimony of an expert witness when determining the standard of care required of a health professional in the same or similar communities. Expert testimony is necessary when the jury is not qualified to determine what a reasonably prudent professional’s standard of care should be in a given situation. Most states hold those with special skills (e.g., physicians, nurse practitioners, physician assistants) to a higher standard of care, which is rea- sonable in light of their education and training. A registered nurse, for example, has the duty to exercise that degree of skill, care, and knowledge ordinarily possessed and exercised by other nurses. If a patient’s injury is the result of a physician’s negligent act, the standard of care required would be that degree of skill, care, and knowledge ordinarily possessed and exer- cised in the specialty the physician is practicing. In addition, an organization’s policies and procedures, regulatory requirements, and accreditation standards (e.g., The Joint Commission) can be used to help establish the standard of care required.

Duty Set by Statute Various state statutes can be used in establishing the duty to care. California Code of Regulations, Title 22, section 70217 reads in part:

(a) . . . only registered nurses shall be assigned to Intensive Care Newborn Nursery Service Units, which specifically require one reg- istered nurse to two or fewer infants. In the Emergency Department, only registered

ELEMENTS OF NEGLIGENCE 47

those standards. Thus, if an employee fails to adhere to a hospital’s written standards of care and a patient is injured, the employee who violates those standards can be considered negligent if the patient is injured as a result of that violation.

Ethics and the Standard of Care The standard of care required by a caregiver can in part be influenced by the principles of ethics that apply to the caregiver’s profession. For example, a decision concerning termination of resuscitation efforts is an area where the standard of care includes an ethical component. Under these circumstances, it occasion- ally may be appropriate for a medical expert to testify about the ethical aspects underlying the professional standard of care.

Community Versus National Standard of Care The courts have been moving away from reliance on a community standard and applying an industry or national standard. This trend has developed as a result of the more reasonable belief that the standard of care should not vary with the locale where an individual receives care. It is unreasonable for any one healthcare facility and/or healthcare professional to set the stan- dard simply because there is no local basis for com- parison. Geographic proximity rules have increasingly given way to a national standard, with the standard in the professional’s general locality becoming a factor in determining whether the professional has exercised that degree of care expected of the average practitioner in the class to which he or she belongs.

The ever-evolving advances in medicine and mass communications, the availability of medical specialists, the development of continuing education programs, and the broadening scope of government regulations continue to raise the standard of care required of healthcare professionals and organiza- tions. As a result, many courts have adopted the view that the practice of medicine should be national in scope. In Dickinson v. Mailliard, the court stated:

Hospitals must now be licensed and accred- ited. They are subject to statutory regulation. In order to obtain approval they must meet certain standard requirements. . . . It is no lon- ger justifiable, if indeed it ever was, to limit a hospital’s liability to that degree of care which is customarily practiced in its own commu- nity. . . . [M]any communities have only one

for nurses caring for women in active labor only, antepartum patients who are not in active labor only, postpartum women only, or mother-baby couplets only, shall be the same ratios as stated in subsections (3) and (4) above for those categories of patients.

(6) The licensed nurse-to-patient ratio in a pediatric service unit shall be 1:4 or fewer at all times.

(7) The licensed nurse-to-patient ratio in a postanesthesia recovery unit of the anesthe- sia service shall be 1:2 or fewer at all times, regardless of the type of anesthesia the patient received.

(8) In a hospital providing basic emer- gency medical services or comprehensive emergency medical services, the licensed nurse-to-patient ratio in an ED shall be 1:4 or fewer at all times that patients are receiving treatment. There shall be no fewer than two licensed nurses physically present in the ED when a patient is present.

As in Hastings v. Baton Rouge Hospital, some duties are created by statute. As noted earlier, a Lou- isiana statute imposes a duty on licensed hospitals to make emergency services available to all persons residing in the state regardless of insurance coverage or economic status. Many such standards are created by administrative agencies under the provisions of a statute. To establish liability based on a defendant’s failure to follow the standard of care required by stat- ute, the following elements must be present:

1. The defendant must have been within the specified class of persons outlined in the statute.

2. The plaintiff must have been injured in a way that the statute was designed to prevent.

3. The plaintiff must show that the injury would not have occurred if the statute had not been violated.

Duty Set by Policies and Procedures The standard of care that employees and agents of a healthcare entity must follow can be established through the healthcare organization’s internal policies, procedures, rules, and regulations. The courts gener- ally hold that such internal operational standards are indicative of, for example, a hospital’s expectations of the proper procedures to be followed in render- ing patient care and, hence, create a duty to adhere to

48 Chapter 3 Tort Law—Negligence

Furthermore, the Georgia Court of Appeals in Hodges v. Effingham15 held that application of the locality rule was erroneous in an action against the hospital. The alleged failure of nurses to take an accu- rate medical history of the patient’s serious condition and convey the information to the physician drew into question the professional judgment of the nurses. The jury should have been instructed as to the general standard of nursing required.

There are no degrees of care in fixing respon- sibility for negligence, but the standard is always that care which a reasonably prudent person should use under like circumstances. The duty to exercise reasonable care is a stan- dard designed to protect a society’s members from unreasonable exposure to potentially injurious hazards; negligence is conduct that falls short of the reasonable care standard. Perfection of conduct is humanly impossible; however, and the law does not exact an unrea- sonable amount of care from anyone.16

Professionals Held to a Higher Standard Most states hold those with special skills to a stan- dard of care that is reasonable in light of their special abilities and knowledge. The plaintiff, for example in Kowal v. Deer Park Fire District17 submitted affidavits from two doctors who stated that, to a reasonable degree of medical certainty, the death of the plaintiff ’s decedent “was caused by severe and extensive cere- bral anoxia caused by . . . incorrect intubation,” that the incorrect intubation of the decedent constituted medical malpractice. The failure to recognize that the patient’s condition constituted a gross departure from good and accepted practice of what is a commonplace medical technique. Assuming that the deposition tes- timony of the defendants established prima facie evi- dence that they were not grossly negligent, the sworn opinion of the plaintiff ’s experts established that there were issues of fact that precluded the granting of sum- mary judgment.

Specialists, in particular, are held to a higher stan- dard of care than nonspecialists. Generally, the reli- ance of the public on the skills of a specialist and the wealth and sources of his or her knowledge is not lim- ited to the geographic area in which he or she prac- tices. Rather, his or her knowledge is a specialty; a person specializes to keep abreast. Any other standard for a specialist would negate the fundamental expecta- tions and purpose of a specialty.

hospital. Adherence to such a rule, then, means the hospital whose conduct is assailed, is to be measured only by standards which it has set for itself.11

The Court of Appeals of Maryland, in Shilkret v. Annapolis Emergency Hospital Association, stated:

[A] hospital is required to use that degree of care and skill which is expected of a rea- sonably competent hospital in the same or similar circumstances. As in cases brought against physicians, advances in the profession, availability of special facilities and specialists, together with all other relevant consider- ations, are to be taken into account.12

Evidence of the standard of care applicable to pro- fessional activities may be found in a variety of doc- uments, such as regulations of government agencies (e.g., state licensure laws) and standards established by private organizations, such as The Joint Commission. Although the courts tend to prefer a broader standard of care, the community standard can be extremely important in any given situation.

Assume for a moment that the question is whether a doctor in a remote area of Alaska has placed patients at an unnecessarily high risk by receiving telephone inquiries from nurses in Eskimo villages at even more remote areas and attempting to prescribe by phone. Clearly, such conduct would violate the standard of care in San Francisco and, in San Francisco, would place his patients in an “unnecessarily” high-risk situation. For the doctor in Alaska, on the other hand, this method of consultation may be the only pos- sible one, and thus not at all unnecessary or a gross and flagrant violation.13

Hospital Must Meet Nationwide Standard The parents in Wickliffe v. Sunrise Hospital14 sued the hospital for the wrongful death of their teenage daugh- ter, who suffered respiratory arrest while recovering from surgery. The Nevada Supreme Court held that the level of care to which the hospital must conform is a nationwide standard. The hospital’s level of care is no longer subject to narrow geographic limitations under the so-called locality rule; rather, the hospital must meet a nationwide standard.

ELEMENTS OF NEGLIGENCE 49

the intravenous (IV) bag had been diluted in the cor- rect dosage. Hospital policies and procedures often provide that when there are questions regarding an order, the pharmacy assistant must seek verification from the pharmacist when a medication order raises concern as to the medication ordered, dosage, and/or route to be administered (e.g., injection, IV). In this instance, failure to follow up established a breach of duty.

Hastings Case: Breach of Duty The court in Hastings v. Baton Rouge Hospital,19 which was discussed earlier, found there was a breach of duty when the patient did not receive adequate care. Hospital regulations provided that when a physician cannot be reached or refuses a call, the chief of service must be notified so that another physician can be obtained. This was not done. A plaintiff need not prove that the patient would have survived if proper treatment had been administered, only that the patient would have had a chance of survival. As a result of Dr. Gerdes’s fail- ure to make arrangements for another physician and Dr. McCool’s failure to perform the necessary surgery, the patient had no chance of survival. The duty to provide for appropriate care under the cir- cumstances was breached.

Failure to Provide a Safe Environment In Dunahoo v. Brooks,20 the nursing facility was found to have breached its duty when a patient tripped over an obviously ill-placed light cord. The court stated that because the defendant nursing facility operator had been aware of the 94-year-old plaintiff ’s infirmi- ties and had agreed to provide her nursing care, the nursing facility assumed an obligation to exercise care commensurate with her physical condition. While the plaintiff was getting out of bed, she tripped and fell over a light cord that was loose on the floor in an area that the defendant knew the plaintiff frequently used. The cord was plugged into a socket on the floor 5 inches from the baseboard. The court was impressed with the ease with which the situation could have been cor- rected, noting that the cord could have been fastened down with a few nails and the outlet placed on the baseboard instead of nearly in the middle of the floor.

Responsibility to Protect Patient The nursing facility was found negligent in Booty v. Kentwood Manor Nursing Home, Inc.,21 when a 90-year- old resident wandered outside the facility, fell, and suf- fered a hip fracture. The resident’s physical condition

Expert Testimony to Establish Required Standard Traditionally, in determining how a reasonably prudent person should perform in a given situation, the courts rely on the testimony of an expert witness as to the stan- dard of care required in the same or similar communities.

Locality Cannot Be Limited to County Lines The plaintiff ’s expert witness in Stogsdill v. Manor Con- valescent Home, Inc., and Hiatt, MD,18 who practiced about 12 miles from the convalescent home where the defendant physician treated the plaintiff, was found competent to testify. The defendant objected, stating the expert never practiced in the county where the malpractice occurred. The court overruled this objec- tion on the grounds that locality cannot be construed so narrowly as to be determined by county lines. Expert testimony like that in Stogsdil is necessary when a jury is not trained or qualified to determine what the reasonably prudent professional’s standard of care would be under similar circumstances.

Breach of Duty Once a duty to care has been established, the plaintiff must demonstrate that the defendant breached that duty by failing to comply with the accepted standard of care. Breach of duty is the failure to conform to or the departure from a required duty of care owed to a person. The obligation to perform according to a stan- dard of care can encompass either performing or fail- ing to perform a particular act.

Breach of duty is illustrated in FIGURE 3-4, where the IV admixture room pharmacist checking the work of a pharmacy technician failed to follow up on his concern as to whether or not the medication in

FIGURE 3-4 Breach of duty.

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Failure to Render Care Injury was obvious in Lucas v. HCMF Corp.,23 where the patient had been transferred to a nursing facility following hospitalization for several ailments, includ- ing early decubitus ulcers. The resident was returned to the hospital24 days later. “At that time the ulcer on her hip had become three large ulcers that reached to the bone and tunneled through the skin to meet one another. The ulcer on her buttocks had grown from one inch in diameter to eight inches in diameter and extended to the bone. Additional ulcers had devel- oped on each of her ribs, on her left arm and wrist, and on the left side of her face.”24 The standard of care in preventing and treating decubitus ulcers required that the resident be mobilized and turned every 2 hours to prevent deterioration of tissue. The treatment records reflected that the resident was not turned at all from September 22 through October 1, nor was she turned on October 4, 7, or 12. Failure to periodically turn the resident and move her to a chair had caused the dete- rioration in her condition.

Multiple Punctures in Starting Central Line In the medical malpractice case of Goodwin v. Kufoy,25 the internist failed to successfully start a central line in order for the patient to receive her prescribed med- ication intravenously. During the attempts to start the central line, the internist made an indeterminate number of puncture wounds at four different sites on the patient’s body. The patient alleged that she expe- rienced physical pain and suffering as a result of the multiple puncture wounds. Her pain, however, was managed successfully with medication, and no further treatment was sought.

The patient filed a lawsuit against the internist, and a medical review panel was formed. The medical review panel’s opinion found that the patient failed to show that the treating internist had breached the standard of care.

The patient then brought her case to trial in dis- trict court. The trial court found that the patient failed to establish the applicable standard of care, failed to prove that the internist had breached any standard of care, and failed to prove that she suffered any damages as a result of the unsuccessful procedure.

The patient appealed, contending that the trial court erred in finding she failed to establish the stan- dard of care. The plaintiff claimed the internist failed to obtain a consult from a specialist, after multiple puncture wounds to start a central line. The State of Louisiana Court of Appeal, 3rd Circuit, agreed that the patient had established the standard of care. How- ever, the plaintiff did not prove that she suffered any

deteriorated, and he eventually died. The staff was aware of the resident’s confusion and tendency to stray. The court found that the facility was responsible for taking reasonable steps to prevent injury to a mentally con- fused and physically fragile resident. The facility’s alarm system might have alerted the staff of unauthorized res- ident departures, but it had been deactivated, and the doors were propped open for the convenience of the staff. The record demonstrated that inadequate super- vision was the cause of resident’s departure and that he most likely would not have suffered injury but for the nursing facility’s breach of duty owed to the resident.

Injury Injury includes physical harm, pain, suffering, and loss of income or reputation. A defendant may be negligent and still not incur liability if no injury or actual damages result to the plaintiff. Without harm or injury, there is no liability. The mere occurrence of an injury “does not establish negligence for which the law imposes liability, because the injury may be the result of an unavoidable accident, or an act of God, or some cause so remote to the person sought to be held liable for negligence that he cannot be charged with responsibility for the injury.”22

FIGURE 3-5 portrays the administration of an incor- rect dose of an IV medication that had been improp- erly diluted in the hospital’s pharmacy, which led to the injury and ultimate death of an infant in General Hospital’s nursery.

Hastings Case: Injury Hastings went into cardiac arrest. An attempt to revive him was futile and the patient died after having been moved back to the ED. The patient virtually bled to death, thus establishing the third element required to establish proof that a negligent act had been committed.

FIGURE 3-5 Injury.

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ELEMENTS OF NEGLIGENCE 51

Dr. Gerdes’s failure to obtain another surgeon and Dr. McCool’s failure to operate, Cedric had no chance of liv- ing. Requiring his survivors to prove that surgery would have saved him would be an unreasonable burden.”28

Failure to Alert Patient of Misread Computed Tomography Scan On November 2, 1995, the plaintiff, in St. Dic v. Brook- lyn Hospital Center,29 was admitted to the hospital complaining of a severe headache, an inability to open her eyes, and the absence of feeling in her legs. A com- puted tomography (CT) scan was administered, which the defendant conceded was misread by the staff phy- sician as normal. After discharging the plaintiff from its care, the defendant’s radiologist reviewed the CT and concluded it was, in fact, not normal. The defen- dant did not contact the plaintiff to alert the defendant about the revised finding. The hospital conceded that its employee misread the CT. Failure to alert the plain- tiff and the misreading were departures from accepted medical practice, the jury properly found that those conceded departures were the proximate causes of the

damages as a result of the defendant’s failed attempts to start a central line.

Causation The element of causation requires that there be a rea- sonable, close, and causal connection or relationship between the defendant’s negligent conduct and the resulting damages. In other words, the defendant’s neg- ligence must be a substantial factor causing the plain- tiff ’s injury. Proximate cause is a term that refers to the relationship between a breach of duty and the result- ing injury. The breach of duty must be the proximate/ direct cause of the resulting injury. The mere departure from a proper and recognized procedure is not suffi- cient to enable a patient to recover damages unless the plaintiff can show that the departure was unreasonable and the proximate cause of the patient’s injuries.

The courts generally apply the but-for rule to deter- mine if the injury is directly the result of a defendant’s act or omission of an act. A finding that an injury would not have occurred but for a defendant’s act establishes that the particular act or omission is the proximate cause of the harm. If an injury would have occurred regardless of a defendant’s negligent act, liability can- not be assigned to the defendant. “Thus, in a death case, if a defendant physician, by action or inaction, has destroyed any substantial possibility of the patient's survival, such conduct becomes a proximate cause of the patient’s death. The law does not require the plain- tiff to prove to a certainty that the patient would have lived had he received more prompt diagnosis and treat- ment for the condition causing the death.”26

FIGURE 3-6 portrays a defense attorney successfully arguing that the cause of death of an infant in General Hospital’s nursery was due to the failure of the phar- macist to properly verify that the IV medication had been properly diluted and labeled by the pharmacy technician in the hospital’s pharmacy. The IV solu- tion, containing the medication, was delivered to the nursery, where the nurse checked the label, unaware that the medication left the pharmacy mislabeled and improperly diluted, she administered it to the infant, who subsequently died. Those actions combined to establish the proximate cause of the injury, the fourth element of negligence—causation.

Hastings Case: Causation Causation in the Hastings v. Baton Rouge Hospital,27 discussed earlier, was well established. In the ordinary course of events, Hastings would not have bled to death in a hospital ED over a 2-hour period without some surgical intervention to save his life. “As a result of

FIGURE 3-6 Causation determined.

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52 Chapter 3 Tort Law—Negligence

instances in which the hospital nurse allegedly failed to meet the nursing standard of care, including fail- ure to assess the need for oxygen therapy, failure to note abnormal breath sounds and severity or location of pain, failure to assess urinary retention, and failure to assess vital signs and nausea. The plaintiff, Stewart’s husband, contended that the evidence established that the defendants violated the nursing standard of care and that their failures were the proximate cause of his wife’s death. The defendants moved for dismissal and the superior court granted the motion. The Court of Appeals of Washington, Division Three, in Stew- art v. Newbold,33 found that the plaintiff—Stewart’s husband—failed to establish any genuine issue on the question of proximate causation. The trial court properly dismissed the claims against the nurse and hospital.

Eliminating Causes Another way to establish the causal relationship between the particular conduct of a defendant and a plaintiff ’s injury is through the process of eliminating causes other than the defendant’s conduct. As an example, in Shegog v. Zabrecky,34 Mr. Pereyra sought treatment for back pain from Dr. Zabrecky, a chiropractor at the Life Extension Center, in January 1987. Zabrecky ordered X-rays. The X-rays revealed that Pereyra was suffering from a frac- tured vertebra caused by a malignant tumor. Pereyra was referred to a surgeon, who performed two surgical procedures to remove the tumor. Pereyra underwent a series of radiation treatments, which were supervised by Dr. Usas. A CT scan revealed that the cancer had spread to his lungs. Dr. Usas and other consulting phy- sicians recommended that chemotherapy be considered following the course of radiation treatments. Pereyra was advised that his chance of survival following che- motherapy was 50% or better. During the summer of 1987, Pereyra consulted with a number of physicians as to the best course of treatment. Pereyra continued to see Zabrecky throughout the summer and fall of 1987. Zabrecky recommended that Pereyra reject the chemo- therapy treatments and undergo a course of treatment with neytumorin and neythymin (two compounds man- ufactured in Germany). The Food and Drug Adminis- tration had not approved either drug. Pereyra agreed to undergo the treatment. Zabrecky performed an initial enzyme study prior to treatment, but did not perform further tests after the course of treatment began. During the course of treatment, the cancer continued to spread. Additional radiation treatments were given. Pereyra’s condition worsened, and he was admitted to the hospi- tal. The physicians at the hospital had not been aware that Pereyra was injecting himself with drugs given to

plaintiff ’s injury. “The principal issue presented on this appeal is whether those conceded departures were the proximate causes of the plaintiff ’s injury. Contrary to the defendant’s contention, the evidence adduced at trial was legally sufficient to support the jury’s verdict on causation.”30

Failure to Refer In Robinson v. Group Health Association, Inc.,31 the District of Columbia Court of Appeals held that there was a genuine issue of material fact as to whether the failure of a group health provider to treat a patient’s diabetes aggressively resulted in the amputation of his leg below the knee. The testimony of the plaintiff ’s expert, as it related to the issue of proximate cause, was sufficient to allow the case to go to the jury. Accord- ing to the expert witness, the failure of the provider to refer the patient for vascular evaluation resulted in his below-the-knee amputation. The expert testified to a reasonable degree of medical certainty, which he equated to a greater than 50% chance, that if there had been an early vascular consult, followed by an angioplasty and perhaps a partial foot amputation, a below-the-knee amputation could have been avoided. Although the provider presented contrary testimony, the plaintiff ’s expert testimony was found sufficient to permit a reasonable juror to find that there was a direct and substantial causal relationship between the provider’s breach of the standard of care and the patient’s injuries.

The primary wrong upon which a cause of action for negligence is based consists of the breach of a duty on the part of one person to protect another against injury, the proximate result of which is an injury to the person to whom the duty is owed. These elements of duty, breach, and injury are essentials of actionable negligence, and in fact, most judicial defi- nitions of the term “negligence” or “actionable neg- ligence” are couched in those terms. In the absence of any one of them, no cause of action for negligence will lie.32

Causation Not Established: Case Dismissed Mrs. Stewart was admitted to the hospital with inflam- mation of the gallbladder, and the surgeon began antibiotics. Stewart, however, died early the next morning. The county medical examiner stated that the cause of death was a result of a blood-borne infec- tion. The plaintiff ’s nurse provided expert testimony in a deposition that a registered nurse at the hospital failed to meet the nursing standard of care in treat- ing the patient. A chart was produced identifying 11

ELEMENTS OF NEGLIGENCE 53

finding as to causation. The appellate court held that Zabrecky’s grossly negligent actions and the circum- stantial evidence introduced supported the jury’s finding of causation. Zabrecky violated a recognized standard of care by prescribing statutorily prohibited drugs. No evidence was presented that would have supported another cause of the patient’s liver fail- ure. Reports from treating physicians indicate that the plaintiff died of liver failure and not from can- cer. The defendant’s expert testified that necrosis of the liver can be caused by the injection of foreign substances. He also testified that the normal reaction time of the human liver to a foreign protein is, on average, 6 weeks.

One of the ways to establish the causal rela- tionship between particular conduct of a defendant and a plaintiff ’s injury is the expert’s deduction, by the process of elimi- nating causes other than the conduct, that the conduct was the cause of injury. . . . The sub- mitted reports indicate that each physician

him by Zabrecky. Upon urging from his wife, Pereyra revealed this information to the physicians at the hospi- tal. Pereyra died on December 17, 1987, approximately 6 weeks after he had begun treatment with neytumorin and neythymin. An autopsy revealed that Pereyra had died from necrosis of the liver caused by a toxic reaction to a foreign substance. Pereyra was taking only the drugs neytumorin and neythymin between July 1987 and his death. No cancer was found in the liver.

A lawsuit was filed against the defendants, seeking damages for negligent treatment. The alleged negli- gent acts included:

■ Administering drugs statutorily prohibited for use ■ Withholding information from treating physicians ■ Failing to follow patient’s blood work ■ Advising the patient to use drugs that had expired ■ Engaging in the unlicensed practice of medicine ■ Inducing the patient to forgo appropriate therapy

The jury delivered a verdict for the plaintiff. The defendants appealed, claiming that the evi- dence introduced at trial did not support the jury’s

Citation: Caruso v. Pine Manor Nursing Ctr., 538 N.E.2d 722 (Ill. App. Ct. 1989)

Facts In Illinois, a nursing facility by statute has a duty to provide its residents with proper nutrition. Under the Nursing Home Care Reform Act, the owner and licensee of a nursing home are liable to a resident for any intentional or negligent act or omission of their agents or employees that injures a resident. The act defines neglect as a failure of a facility to provide adequate medical or personal care or maintenance, when failure results in physical or mental injury to a resident or in the deterioration of the resident’s condition. Personal care and maintenance include providing food, water, and assistance with meals necessary to sustain a healthy life. The nursing facility in this case maintained no records of the resident’s fluid intake or output. A nurse testified that such a record is a required nursing facility procedure that should have been followed for a person in the resident’s condition, but was not.

The resident’s condition deteriorated after staying 6.5 days at the facility. Upon leaving the facility and entering a hospital ED, the resident was diagnosed by the treating physician as suffering from severe dehydration caused by an inadequate intake of fluids. The nursing facility offered no alternative explanation for the resident’s dehydrated condition.

The trial court found that the record supported a finding that the resident had suffered from dehydration as a result of the nursing facility’s negligence. The defendant appealed the jury verdict.

Issue Did the resident suffer harm as a result of Pine Manor Nursing Center’s negligence?

Holding The Illinois Appellate Court upheld the trial court’s finding that the resident suffered dehydration due to the nursing facility’s negligence.

Reason The evidence demonstrated that the proximate cause of the resident’s dehydration was the nursing facility’s failure to administer proper nourishment; therefore, the jury reasonably concluded that the nursing facility’s negligence caused the dehydration.

FAILURE TO ADMINISTER PROPER NOURISHMENT

54 Chapter 3 Tort Law—Negligence

the plaintiff, a resident in the defendant’s nursing facility, suffered from paralysis of the left side of the body but was able to roll toward the left side in bed. The defendant had knowledge of this ability. A radi- ator, which was approximately the same height as the bed, was next to the plaintiff ’s bed. During the night, the plaintiff ’s left foot came in contact with the radiator, and she suffered third-degree burns. The court held that this kind of accident was fore- seeable with respect to a person in the plaintiff ’s condition, particularly because the defendant had knowledge of the plaintiff ’s condition. The defen- dant should have shielded the radiator or not placed the plaintiff next to it.

Generally, the issue of foreseeability is for the trial court to decide. A duty to prevent a wrongful act by a third party will be imposed only where those wrongful acts can be reasonably anticipated.

▸ SUMMARY CASE All the elements necessary to establish negligence were well established in Niles v. City of San Rafael.40 On June 26, 1973, at approximately 3:30 PM, Kelly Niles, a young boy, got into an argument with another boy on a ball field, and he was hit on the right side of his head. He rode home on his bicycle and waited for his father, who was to pick him up for the weekend. At approximately 5:00 PM, his father arrived to pick him up. By the time they arrived in San Francisco, Kelly appeared to be in a great deal of pain. His father then decided to take him to Mount Zion Hospital, which was a short distance away. He arrived at the hospital ED at approximately 5:45 PM. On admission to the ED, Kelly was taken to a treatment room by a regis- tered nurse. The nurse obtained a history of the injury and took Kelly’s pulse and blood pressure. During his stay in the ED, he was irritable, vomited several times, and complained that his head hurt. An intern who had seen Kelly wrote, “pale, diaphoretic, and groggy,” on the patient’s chart. Skull X-rays were ordered and found to be negative except for soft tissue swelling that was not noted until later. The intern then decided to admit the patient. A second-year resident was called, and he agreed with the intern’s decision. An admitting clerk called the intern and indicated that the patient had to be admitted by an attending physician. The res- ident went as far as to write “admit” on the chart and later crossed it out. A pediatrician who was in the ED at the time was asked to look at Kelly. The pediatrician was also the paid director of the Mount Zion Pediatric Outpatient Clinic.

deduced that the German drugs were the most probable cause of Pereyra’s liver failure, even without analysis of the drugs.35

Foreseeability Foreseeability is the reasonable anticipation that harm or injury is likely to result from a commission or omis- sion of an act. The test for foreseeability is whether one of ordinary prudence and intelligence should have anticipated the danger to others caused by his or her negligent act. The test for foreseeability is not what the wrongdoer believed would occur; instead, it is whether the wrongdoer ought to have reasonably fore- seen that the event in question, or some similar event, would occur.36 The broad test of negligence is what a reasonably prudent person would or should normally foresee and would do in light of this foresight under the circumstances.37

Foreseeability involves guarding against that which is probable and likely to happen, not against that which is only remotely possible. There is no expecta- tion that a person can guard against events that cannot reasonably be foreseen or that are so unlikely to occur that they would be disregarded.

When a defendant’s action or actions breach the standard of care and injury is the result of the breach, the jury must make two determinations. First, was it foreseeable that harm would occur from the failure to meet the standard of care? Second, was the careless- ness or negligence the proximate or immediate cause of the harm or injury to the plaintiff?

In Hastings v. Baton Rouge Hospital, it was highly probable that the patient would die if the bleed- ing was not stopped. The broad test of negligence is what a reasonably prudent person would foresee and would do in the light of this foresight under the circumstances.

In Haynes v. Hoffman,38 the plaintiff brought a medical malpractice action against the defendant phy- sician for his alleged negligence in prescribing a med- ication from which the plaintiff suffered an allergic reaction. The trial court returned a verdict in favor of the defendant, and the plaintiff appealed. The evidence at trial revealed that the plaintiff had not disclosed her history of allergies to the physician. The physician tes- tified that, at the time of the physical examination, the plaintiff denied having any allergies. The plaintiff was found to have contributed to her injuries by failing to provide her physician information regarding her known allergies.

The question of foreseeability was an issue in Ferguson v. Dr. McCarthy’s Rest Home.39 In this case,

SUMMARY CASE 55

Case Lessons Each case presented in this textbook illustrates actual experiences of plaintiffs and defendants, enabling the reader to apply the lessons learned to real-life situa- tions. The many lessons in Niles v. City of San Rafael include the following:

■ An organization can improve the quality of patient care rendered in the facility by establishing and adhering to policies, procedures, and protocols that facilitate the delivery of quality care across all disciplines.

■ The provision of quality health care requires col- laboration across disciplines.

■ A physician must conduct a thorough and respon- sible examination and order the appropriate tests for each patient, evaluating the results of those tests and providing appropriate treatment prior to discharging the patient.

■ A patient’s vital signs must be monitored closely and documented in the medical record.

■ Corrective measures must be taken when a patient’s medical condition signals a medical problem.

■ A complete review of a patient’s medical record must be accomplished before discharging a patient. Review of the record must include review of test results, nurses’ notes, residents’ and interns’ notes, and the notes of any other physi- cian or consultant who may have attended the patient.

■ An erroneous diagnosis leading to the premature dismissal of a case can result in liability for both the organization and physician.

Collaboration in Tort Reform Physicians and, increasingly, advanced practice prac- titioners (e.g., physician assistants and nurse practi- tioners) are on the front lines of medicine but often have been excluded from the decision-making pro- cesses that threaten their autonomy and financial security. A concerted effort must be made to include them in the process of tort reform. The present system of punishment for all because of the inadequacies of the few has proven to be costly and far from effective.

The medical malpractice insurance crisis contin- ues to be a major dilemma for the healthcare industry. Although there have been many approaches to resolv- ing the crisis, there appears to be no one magic for- mula. The solution most likely will require a variety of efforts, including tort reforms, some of which have been reviewed earlier here.

Haskins talked to Kelly in the emergency room, but he did not examine Kelly or look at his chart. Then Haskins talked to Kelly’s father, concluded he was a responsible person, and told him Kelly could go home. Haskins advised Niles to watch for dilation of the pupils in Kelly’s eyes, and to be sure that Kelly could be aroused from sleep. The pediatrician asked Kelly a few questions and then decided to send him home.41

The physician could not recall what instruc- tions he gave the patient’s father, but he did give the father his business card. The pediatrician could not recall giving the father a copy of the ED’s head injury instructions, an information sheet that had been prepared for distribution to patients with head injuries. The head injury pamphlet described under what circumstances the patient should be returned to the ED should any of the following signs appear:

1. A large, soft lump on the head 2. Unusual drowsiness (cannot be awakened) 3. Forceful or repeated vomiting 4. A fit or convulsion (jerking or spells) 5. Clumsy walking 6. Bad headache 7. One pupil larger than the other

Although Kelly exhibited several of these signs while he was in the ED, he was discharged. Kelly was taken back to his father’s apartment at about 7:00 PM. A psychiatrist, a friend of Kelly’s father, had stopped by later that evening. He examined Kelly and noted that one pupil was larger than the other. Because the pediatrician could not be reached, Kelly was taken back to the ED. A physician on duty noted an epidural hematoma during his examination and ordered that a neurosurgeon be called.

Today, Kelly can move only his eyes and neck. A lawsuit against Mount Zion and the pediatrician for $5 million was instituted. The city of San Rafael and the public school district also were included in the lawsuit as defendants. Expert testimony by two neurosurgeons during the trial indicated that the patient’s chances of recovery would have been very good if he had been admitted promptly. This testimony placed the proximate cause of the injury with the hospital. The final judgment was $4 million against the defendants, $2.5 million for compensa- tory damages, and another $1.5 million for pain and suffering.

56 Chapter 3 Tort Law—Negligence

■ Injury: without proof of harm or injury, a defen- dant cannot be found liable for negligence.

■ Causation: the defendant’s negligence must be a substantial factor in having caused injury. • Foreseeability: the reasonable anticipa-

tion that harm or injury will result from an act or a failure to act.

• Test for foreseeability: whether one should have reasonably anticipated that the event in question or a similar event would occur.

▸ REVIEW QUESTIONS 1. Describe the objectives of tort law. 2. Explain the difference between negligence and

malpractice. 3. Describe the elements of a negligence that the

plaintiff must establish in a negligence suit. 4. Describe the importance of causation in estab-

lishing liability in a negligence suit.

▸ NOTES 1. Tomcik v. Ohio Dep’t of Rehabilitation & Cor-

rection, 62 Ohio Misc.2d 324, 598 N.E.2d 900 (Ohio Ct. App. 1991).

2. Id. at 904. 3. Clare Kitchen, “You’re Taking Out Wrong

Kidney, Surgeon Was Told,” http://www .dai lymai l .co.uk/hea lth/ar t ic le-123005 /Youre-taking-wrong-kidney-surgeon-told .html#ixzz4sTYYdGM2

▸ CHAPTER REVIEW 1. A tort is a civil wrong that is committed against

a person or property for which a court provides a remedy in the form of an action for damages.

2. Negligence is a tort—a civil or personal wrong that is the unintentional commission or omis- sion of an act that a reasonably prudent person would or would not do under the same or simi- lar circumstances.

3. Forms of negligence ■ Malfeasance: the execution of an unlawful

or improper act. ■ Misfeasance: the improper performance of

an act that results in injury to another. ■ Nonfeasance: a failure to act when there is a

duty to do so.

4. Degrees of negligence ■ Ordinary negligence: the failure to do what

a reasonably prudent person would do or doing what a reasonably prudent person would not do under the circumstances of the act or omission in question.

■ Gross negligence: the intentional or wanton omission of care that should be provided or the performance of an improper act.

5. Elements of negligence ■ Duty to care: the legal obligation or obliga-

tory conduct owed by one person to another. The standard of care is the conduct expected of an individual in a given situation.

■ Breach of duty: the failure to meet a prevail- ing standard of care.

The Ohio Court of Appeals held that the delay in providing the plaintiff treatment fell below the medically acceptable standard of care. The court was appalled that the physician had characterized his evaluation as a medical examination or had implied that what he described as a “cursory breast examination” should be considered a medically sufficient breast examination. It seemed incredible to the court that a physician would deliberately choose not to take the addi- tional few minutes or seconds to thoroughly palpitate the sides of the breasts, which is a standard, minimally intrusive cancer detection technique. His admission that he merely “pressed” on the plaintiff’s breasts, coupled with the additional admission that such acts would not necessarily disclose lumps in the breasts, constituted poor medical care.

It was probable that an earlier procedure would have safely and reliably conserved a large part of the plaintiff’s right breast. Through inexcusable delays, the plaintiff lost this option and, instead, was medically required to have the entire breast removed. The court concluded that the defendant’s negligence was the sole and proximate cause of the plaintiff’s losses.42

THE COURT’S DECISION

NOTES 57

4. YourLawyer.com, “Wrong Breast and Wrong Kidney Removed as a Result of Two Inexcusable Surgical Errors,” http://www.yourlawyer.com /articles/title/wrong-breast-and-wrong-kidney -removed-as-a-result-of-two-inexcusable -surgical-errors

5. NYTimes.com, “Doctor Who Cut Off Wrong Leg Is Defended by Colleagues,” The New York Times, September 17, 1995. http://www .nytimes.com/1995/09/17/us/doctor-who -cut-off-wrong-leg-is-defended-by-colleagues .html

6. 498 So. 2d 713 (La. Ct. App. 1986). 7. 11 A.2d 132 (N.Y. App. Div. 1960). 8. 787 S.W.2d 494 (Tex. Ct. App. 1990). 9. Id. at 496.

10. 233 Miss. 654, 103 So. 2d 365 (1958). 11. 175 N.W.2d 588, 596 (Iowa 1970). 12. 349 A.2d 245 (Md. 1975). 13. Greene v. Bowen, 639 F. Supp. 544, 561

(E.D. Cal. 1986). 14. 706 P.2d 1383 (Nev. 1985). 15. 355 S.E.2d 104 (Ga. Ct. App. 1987). 16. 57A AM. JUR. 2D Torts § 26 (1989). 17. No. 2004-00863 (N.Y. App. Div. 2004). 18. 343 N.E.3d 589 (Ill. 1976). 19. 498 So. 2d 713 (La. Ct. App. 1986).

20. 128 So. 2d 485 (Ala. 1961). 21. 483 So. 2d 634 (La. Ct. App. 1985). 22. 57A AM. JUR. 2D Torts § 78 (1989). 23. 384 S.E.2d 92 (Va. 1989). 24. Id. 25. 974 So. 2d 815 (La. App. 2008). 26. Brown v. Koulizakis, 229 Va. 524, 331 SE.2d 440

at 446 (1985). 27. 498 So. 2d 713 (La. Ct. App. 1986). 28. Id at 71. 29. St. Dic v. Brooklyn Hospital Center, 12 A.D. 3rd

661 (2004). 30. Id. at 662. 31. 691 A.2d 1147 (D.C. App. 1997). 32. 57A AM. JUR. 2D Torts § 80 (1989). 33. 112 Wash. App. 1027 (2002). 34. 654 A.2d 771 (Conn. App. 1995). 35. Id. at 777. 36. Clark v. Wagoner, 452 S.W.2d 437, 440

(Tex. 1970). 37. 57A AM. JUR. 2D Torts § 134 (1989). 38. 296 S.E.2d 216 (Ga. Ct. App. 1982). 39. 142 N.E.2d 337 (Mass. 1957). 40. 116 Cal. Rptr. 733 (Cal. Ct. App. 1974). 41. Id. 42. Supra, Tomcik v. Ohio Dep’t of Rehabilitation &

Correction.

58 Chapter 3 Tort Law—Negligence