Health Care Risk Management
Helpm31990
Chapter9.pptxChapter 9: A Primer on Medical Malpractice
Malpractice – What is it?
Error - behavioral matter
Misperception
Mistake
Omission
Substitution
Accident - unplanned event
Malpractice - negligence
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Negligence
An act that a prudent person would not have done or the omission of a duty that a prudent person would have fulfilled, resulting in injury or harm to another person.
A civil wrong and part of the law of torts.
Founded on the relationship between the actor and the victim
Requirements of an Act of Negligence
Legally recognized relationship between the health care worker and patient
Health care worker has a duty of care to the patient
Health care worker breached the duty of care by failing to conform to the required standards of care
The breach of duty was the direct cause of harm, resulting in the patient suffering damages as a result of the harm
Malpractice
Negligence that is the proximate cause of injury or harm to a patient resulting from
A lack of professional knowledge, experience or skill that can be expected in others in the profession.
OR
From failure to exercise reasonable care or judgment in the application of professional knowledge, experience or skill.
Medical Malpractice
The commission or omission of an action causing an injury is shown to arise from the exercise of professional medical judgment
There must be:
A Physician-Patient Relationship
A Duty to Perform Professionally
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Sources of Professional Standards
Government statutes and regulations
Professional society standards
Voluntary accrediting agency standards
Administrative policies and rule of the facility
Theories of Liability
Informed consent
Strict liability
Vicarious liability
Res ipsa loquitur
Re ipsa loquitur
The thing speaks for itself
Injury would not ordinarily occur in the absence of negligence
Injury was caused by the actions was within the control of the defendant
Injury is not due to any action on the part of the plaintiff
Evidence surrounding the circumstances is mostly within the control of the defendant
Hospital Liability for Malpractice
Respondeat superior
Ostensible agency
Staff Privileges
Corporate Negligence
Contributory Negligence
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Other Liability Theories
Intentional tort
Assault and battery
Libel
Slander
Invasion of Privacy
Types of Damages
Compensatory damage
Awards for pain and suffering
Punitive damages
Statute of Limitations
The maximum period of time after the patient’s injury during which a lawsuit may be commenced.
Most state have a statutory period between one and three years.
Typically the statutory period is deferred (tolled) during infancy and starts to run only on the patient’s 18th birthday.
Common Malpractice Allegations
Surgery/post-op complications
Failure to diagnose cancer
Surgery/inadvertent act
Improper treatment (birth related)
Failure to diagnose fracture or dislocation
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Most Expensive Settlements
Improper treatment (birth related)
Failure to diagnose hemorrhage
Failure to diagnose myocardial infarction
Failure to diagnose infection
Failure to diagnose cancer
Other concerns which may impact liability
Unrealistic patient expectations
Non response to complaints
Illegible medical records
Insufficient information in medical records
No follow-up on abnormal tests
Professional miscommunication
Summary
Risk Managers need to be aware of both professional and facility liabilities
Malpractice claims can be very complex
Setting policies and procedures and following them are important in minimizing malpractice liability
