2-3 pages assignment

SCOOBYR

9781284538588_SLID_CH03.pptx

Home >Business & Finance homework help >Management homework help >2-3 pages assignment

Tort Law and Reform

Chapter 3

LEARNING OBJECTIVES

Describe what a tort is and the purpose of tort law.

Describe the elements of negligence.

Identify various intentional torts and their application in the healthcare setting.

Explain the theories a plaintiff could use in pursuing a products liability case.

LEARNING OBJECTIVES - II

Describe the meaning of defensive medicine.

Describe various programs designed to lower the cost of malpractice insurance.

Describe the various ways to reduce the number of negligence claims.

Tort

A civil wrong, other than a breach of contract, committed against a person or property for which a court provides a remedy in form of an action for damages.

Objectives of Tort Law

Preservation of peace between individuals.

Find fault for wrongdoing.

Deterrence by discouraging the wrongdoer from committing future tortious acts

Compensation to indemnify injured person/s.

Categories of Tort Law

Negligence

Intentional

Strict liability regardless of fault

e.g., products liability

Negligence

Commission or omission of an act that a reasonably prudent person would or would not do under given circumstances.

Commission of an Act

Administering the wrong medication

Administering the wrong dosage of a medication

Administering medication to the wrong patient

Performing a surgical procedure without patient consent

Performing a surgical procedure on the wrong patient

Performing the wrong surgical procedure

Omission of an Act

Failing to conduct a thorough history & physical examination

Failing to assess & reassess a patient's nutritional needs

Failing to administer medications

Failing to order diagnostic tests

Failing to follow up on abnormal test results

Malpractice

Negligence of a professional person

surgeon who conducts a surgical procedure on wrong body part

Criminal Negligence

Reckless disregard for safety of another.

Willful indifference to injury that could follow an act.

Forms of Negligence

Malfeasance

Execution of an unlawful or improper act, i.e., performing a partial birth abortion when prohibited by law

Misfeasance

Improper performance of an act, i.e., wrong sided surgery.

Nonfeasance

Failure to act when there is a duty to act, i.e., failing to prescribe medications that should have been under the circumstances

Degrees of Negligence

Slight

Minor deviation of what is expected under the circumstances.

Ordinary Negligence

Failure to do what a reasonably prudent person would or would not do.

Gross Negligence

Intention or wanton “omission of care” that would be proper to provide or the “commission of an act” that would be improper to perform.

Elements of Negligence

Duty to Use Due Care

Standard of care

Breach of Duty

Injury/Actual Damages

Proximate Cause/Causation

Foreseeability

I. Duty to Care

Obligation to conform to a recognized standard of care.

Standard of Care

Describes the conduct expected of an individual in a given situation.

Describes how a “reasonably prudent person” would or would not act under “similar circumstances”.

Measuring stick for properly assessing actual conduct required of an individual.

Reasonably Prudent Person

A nonexistent - hypothetical person who is put forward as community ideal of what would be considered reasonable behavior.

Similar Circumstances

Circumstances at the time of the injury.

Circumstances of the alleged wrongdoer/s at the time of injury.

Age

Physical condition

Education & training

Licenses held

Mental capacity, etc.

Determining Standard

Established by legislative enactment or administrative regulation.

Adopted by the court from a legislative enactment or administrative regulation.

Established by judicial decision.

Applied to the facts of the case by the trial judge or jury, if there is no such enactment, regulation or decision.

courts often rely on testimony of an expert witness as to the standard of care required.

Community v. National Standard

Community Standard

hometown standard (we want to do things our way).

National Standard

most currently accepted standard of care on a national basis.

Case: Hiring Practices

Nurse hired sight unseen over telephone.

Applicant falsely stated in an employee application that he was licensed as an LPN.

His license was not verified by the employer.

He had committed 56 criminal offenses of theft.

He assaulted a resident a resident & broke his leg.

Case: Hiring Practices Duty

Standard expected:

Employer had a “duty” to validate the nurse’s professional license.

II. Breach of Duty

Deviation from the recognized standard of care.

Failure to adhere to an obligation.

Failure to conform to or the departure from a required duty of care owed to a person.

Occurs when

a physician fails to respond to his/her on-call duties.

an employer fails to adequately conduct a pre-employment check (e.g., licensure, background check).

Case: Hiring Practices Breach of Duty

The employer failed to verify the applicant’s licensure.

A more thorough background check should have revealed this employee’s previous criminal conduct.

III. Injury

Actual damages must be established.

If there are no injuries, no damages are due.

Case: Hiring Practices Injury

The resident suffered a broken leg.

Hospital vicariously liable for nurse’s conduct.

IV. Causation

Proximate cause

breach of duty was the proximate cause of the injury

But-for Rule

the defendant’s action, the injury would not have occurred

Case: Hiring Practices Causation

Reasonable anticipation that harm or injury was likely to occur.

The patient suffered a broken leg

Departing from recognized standard of care

failure to verify licensure & conduct an adequate background check

Hiring Practices – III

Injury resulted from the breach of duty.

Injury was foreseeable.

Failure to Hydrate Causation

Failure to administer proper hydration.

Not unreasonable to conclude that one’s dehydration can be caused by failing to provide water.

Foreseeability

Reasonable anticipation that harm or injury is likely to result from an act or an omission to act.

Test for Foreseeability

The test for foreseeability is whether a person of ordinary prudence and intelligence should have anticipated danger to others caused by his or her negligent act.

Case: Hiring Practices Foreseeability

A person of ordinary prudence and intelligence should have anticipated the danger to the resident caused by the employer’s negligent act.

Hot Radiator Foreseeability

A patient’s left foot came in contact with a radiator and she suffered third-degree burns.

The defendant had knowledge of the plaintiff’s condition.

The defendant should have shielded the radiator or not placed the plaintiff next to it.

Sponge & Instrument Count

Dr. Smith owns the local Outpatient Surgery Center.

He instructs employees to count all instruments & surgical sponges following a surgical procedure, prior to closing the surgical site.

Annie, an employee, failed to conduct the count following Bills surgery.

Two months later, Bill, suffering from extreme abdominal pain, was noted to have several sponges and an instrument in his abdomen.

He had developed a massive infection.

Was the doctrine of Vicarious liability applicable in this case?

YES

Even though Annie had strict instructions to count the sponges & surgical instruments prior to closing the surgical site, she failed to do so.

To determine otherwise would undermine the doctrine of vicarious liability, since employers would almost always escape liability by presenting evidence that employees were given careful instructions.

Failure to Follow Instructions

Sarah has a minor surgical procedure under general anesthesia at ABC Surgery Center.

She was instructed not to drive home after release. Her daughter Leslie picks her up.

On the way home Leslie stops for a donuts. Meanwhile, her mother moves to the driver seat.

Upon leaving the parking lot, Sarah hits Carol’s car.

Carol sustains a broken arm & sues ABC for releasing Sarah before she is completely recovered from the anesthesia.

Was the hospital liable for Sarah’s injuries?

NO!

Sarah was negligent, not the hospital. She failed to adhere to both verbal & written instructions not to drive following anesthesia.

It was Sarah’s duty not to drive and her breach of that duty that caused Carol’s injury.

Remember

The four elements of negligence must be presented in order for the plaintiff to recover damages caused by negligence.

Intentional Torts

Assault and Battery

False Imprisonment

Defamation of Character

Fraud

Invasion of Privacy

Intentional Infliction of Mental Distress

Assault

Deliberate threat, coupled with apparent ability to do physical harm to another. Actual contact not necessary.

Person attempting to touch another unlawfully must possess apparent present ability to commit battery.

Person threatened must be aware of or have actual knowledge of an immediate threat of a battery and must fear it.

Battery

Intentional touching of another’s person in socially impermissible manner without person’s consent.

Failure to obtain consent prior to surgery.

Administering blood against patient’s express wishes.

Physically restraining one who refuses to eat.

False Imprisonment

Unlawful restraint of individual’s personal liberty or unlawful restraining or confining an individual.

Restraining patient without cause.

Locking patient in secluded room for failing to attend therapy session.

Legal Justification for Restraint or Seclusion

Person represents a danger to self or others.

Criminal conduct.

Persons with highly contagious diseases, as provided by state or federal statutes.

Reducing Use of Restraints – I

Development of policies and procedures that conform to state & federal guidelines

Education & orientation of staff

Education for patients & families

Sound appraisal of need for restraints

Application of least restrictive restraints

Continuous monitoring of patients to determine continuing need for restraints

Defamation of Character

The offense of injuring a person’s character, fame, or reputation by false & malicious statements.

False oral or written communications to someone other than person defamed that tends to hold that person’s reputation up to scorn or ridicule in eyes of others.

Defamation of Character

Libel – written form of defamation

Signs

Letters

Photographs

Cartoons

Slander – oral form of defamation

Proof of Defamation

A false & defamatory statement.

Communication of a statement to a person other than the plaintiff.

Fault on the part of the defendant.

Special monetary harm.

Proof of Harm Not Required to recover damages when:

Accusing a person of a crime.

Accusing a person of having a loathsome disease.

Using words are harmful to a person’s profession or business.

Calling a woman unchaste.

Libel – Performance Appraisals

Performance appraisals are not meant for general publication.

To recover damages, the appraisal must be published in defamatory manner that injures one’s reputation.

Cartoon – I

Jack draws a cartoon depicting Paul having a rendezvous with a new grad nurse in an empty patient room. The incident in fact never occurred.

Can a defamatory statement can take the form of a cartoon?

Yes, a defamatory statement can take the form of a cartoon because it is capable of adversely affecting a person’s reputation.

Newspapers Articles

Newspaper editorial cartoon depicting 3 persons resembling gangsters in dilapidated building, identified as particular facility that had been closed by state order, was an expression of pure opinion and was protected by 1st Amendment.

Accused of an Affair

Nurse Rachet suggests to Dr. Smith that he should leave his wife Sharon because she is having an affair with Dr. Doe. Dr. Smith writes a letter to Mrs. Doe, repeating Rachet’s statement.

Assuming Dr. Smith’s letter is defamatory, is it libel or slander?

Accused of an Affair

It is libel, even though Dr. Doe is repeating a slanderous statement.

The reverse is not true – the spoken repetition of a written defamation is still considered libel.

The rule is: once libel, always libel.

Slander

Person who brings suit must prove special damages.

When defamatory words refer to person in professional capacity, professional need not show that words caused damage.

Defenses to a Defamation Action

Truth – no liability for defamation if it can be shown that statement is true.

Privilege

Absolute

Qualified

Absolute Privilege

Statements made during judicial & legislative hearings

Confidential communications between spouses

Qualified Privilege

Statements made as result of a legal or moral duty to speak in interests of 3rd persons

Statements must be without malice

Public Figures

Vulnerable to public scrutiny

Suits generally dismissed in absence of

malice

actual knowledge statements are false

recklessness as to truth

Proof of Fraud

Misrepresentation by the defendant.

Knowledge of falsity.

Intent to reduce reliance on misrepresentation.

Justifiable reliance by the plaintiff.

Damage to the plaintiff.

Health Care Fraud

Billing Tradename Drugs/Issuing Generic

Office Visits/Double Billing

Billing for Services not Rendered

Accepting referral fees

Invasion of Privacy

The right to

be left alone

be free from unwarranted publicity

be free from exposure to public view

be free from unwarranted intrusions into a one’s personal affairs

personal privacy

have records/kept confidential

Intentional Infliction of Mental Distress

Conduct that is so outrageous that it goes beyond bounds tolerated by decent society.

Mental Distress

Grief

Shame

Public humiliation

Despair

Shame

Human pride

Mental Distress

Mother shown premature infant in a jar.

Johnson v. Womens Hospital

Verbally abusive physician to patient and/or spouse.

Greer v. Medders

Fraud

Willful & intentional misrepresentation that could cause harm or loss to person or property.

e.g., purposeful concealment from patient of the presence of surgical sponges in his/her abdomen following surgery.

Products Liability

Liability of a manufacturer, seller, or supplier of chattels to a buyer, or other third party for injuries sustained because of a defect in a product.

Products Liability Legal Theories

Negligence

Breach of warranty

Express

Implied

Strict liability

Negligence

Duty

Product manufactured by the defendant

Breach

Product defective when it left the manufacturer

Injury

Plaintiff/s injured by the product

Causation

Product proximate cause of injury

Defective X-ray Unit – I

Mindy places Candice on the table of the hospital’s newly manufacturer-installed x-ray unit.

While in the control room, Mindy hears a crash.

She rushes to the patient & finds that a section of the x-ray unit fell on Candice, further injuring her already broken leg.

Candice sues the manufacturer for negligence.

Can the manufacture be held liable for the plaintiff’s injuries?

YES!

Duty: manufacturer to properly install the x-ray unit.

Breach: failure to properly install the x-ray unit.

Injury: plaintiff suffered injury.

Causation: improper installation was the proximate cause of the plaintiff’s injury.

Express Warranty

Includes specific promises or affirmations made by seller to buyer.

e.g., drug manufacturer represents the product as free from addiction & is not

Crocker v. Winthrop Laboratories

Implied Warranty

A warranty that exists by operation of the law as a matter of “public policy” for protection of the public.

e.g., consumers have right to assume that food is not contaminated

Jacob E. Decker & Sons v. Capps

Strict Liability

Liability without fault

Elements required to establish strict liability

Product manufactured by defendant

Product defective at time it left manufacturer

Plaintiff injured by product

Defective product proximate cause of injuries

Wrong Medication – I

Stanley refills his drug prescription at D Drugs, where he has been a customer for 10 years.

Prior to taking his nightly dosage, he noticed the pill appeared larger than normal.

He phoned D Drugs & explained his concern.

The Pharmacist assured Stanley generic drugs sometimes are larger because of formula fillers but that the medication dosage in his drug was correct.

Wrong Medication – II

Stanley took the drug & never woke up; the dosage given was 5 times that which had been prescribed.

The container from which the pharmacist filled Stanley’s prescription had been mislabeled by the manufacturer.

Wrong Medication – III Court’s Decision

Product was manufactured by the defendant

Product defective at time it left manufacturer

The drug was placed in a mislabeled container.

Plaintiff injured by the product

Stanley passed away in his sleep.

Defective product proximate cause of injuries

The mislabeled container was the proximate cause of Stanley’s death.

Products Liability Res Ipsa Loquitur

Must establish

Product did not perform in way intended

Product not tampered with by buyer/3rd parties

Defect existed at time it left defendant

Products Liability Cases

Tainted Tylenol Capsules

Elsroth v. Johnson & Johnson

Manufacture of unsafe drugs

Merck’s Vioxx

Products Liability Defenses – I

Assumption of the Risk

voluntary exposure to risks: Smoking, radiation therapy, Chemotherapy

Intervening Cause

an IV solution contaminated by product user

Contributory Negligence

use of product in a way it was not intended to be used.

Products Liability Defenses – III

Comparative Fault

injury due to concurrent negligence of both manufacturer & plaintiff.

Disclaimers

manufacturers inserts

Review Questions – I

Describe the objectives of tort law.

Discuss the distinctions among negligent torts, intentional torts, and strict liability.

What forms of negligence are described in this chapter?

How does one distinguish between negligence and malpractice?

What elements must be proven in order to be successful in a negligence suit? Illustrate your answer with a case (the facts of the case can be hypothetical).

Review Questions – III

Can a "duty to care" be established by statute or contract? Discuss your answer.

Describe the categories of intentional torts.

How does slander differ from libel? Give an example of each.

What is products liability? Describe what legal theories an injured party may use in proceeding with a lawsuit against a seller, manufacturer, or supplier of goods.

Describe the defenses often used in a products liability case.