LESSON 3.2

Negligence

Negligence claims are filed by a person or persons who are wronged by another person. Anyone can be sued for negligence. The plaintiff must prove that the defendant had a duty to the plaintiff, that the defendant breached that duty, and that the breach of duty caused an injury to the plaintiff. Negligence is part of a category of legal claims called torts. Torts are simply legal wrongs against a person or persons.

There are different types of negligence, including professional negligence. Professional negligence is also called malpractice. A malpractice claim can be brought against any professional with superior knowledge as demonstrated by higher skill or education. In general, a state-issued certification or license is enough to establish a superior knowledge or training. This label of malpractice is not limited to just doctors. Professionals such as lawyers, hairdressers, plumbers, mechanics, and many more categories of service professionals may be sued for malpractice.

Many people know someone who experienced a medical mistake. It could be a friend or a family member or even yourself. What happens after you learn that an injury was caused by a mistake? This is where negligence comes in.

For example, a 60-year-old male patient goes into a hospital for a routine procedure such as a colonoscopy. After the surgery, his wife is told that he is in recovery, and everything is going to be fine. The wife is relieved and starts calling family to let them know everything is fine and that he is recovering. A couple of hours go by, and his wife is waiting patiently to see her husband. She is told she can see him after he wakes up from the anesthesia. Another hour goes by, and the wife starts to worry. She asks the nurse for an update, and she repeats the same thing. The wife can see him when he is out of the holding area and moved into the recovery room. When a total of four hours goes by, she is getting very concerned and demands to see the doctor. Before the nurse can ring the doctor, the doctor appears in the waiting room to speak to her. The doctor tells the patient’s wife that her husband had a reaction in the recovery room to the anesthesia and passed away shortly after regaining consciousness. The woman immediately collapses in grief.

Weeks after her husband’s death, she contacts the hospital to find out what happened. The hospital repeats that he had a reaction to the anesthesia and never regained consciousness. This, however, was not what she was told at the hospital. She keeps getting conflicting reports or no information at all. This leads her to file a lawsuit against the hospital, the doctor, and the nurses who treated her husband. She files a claim of medical malpractice.

Intentional Torts

In contrast to acts of negligence are intentional torts. The primary difference between acts of negligence and intentional torts is, of course, the intent behind the tort. This means that the plaintiff must prove that the defendant intended the action, regardless of the result or injury of the plaintiff. The intentional torts include the following: assault, battery, false imprisonment, defamation, fraud, invasion of privacy, and intentional infliction of mental distress.

The following scenario further explains the concept of intentional torts.

In general, the claim of assault does not require actual physical contact with the victim; it only requires the threat of harmful contact. Threatening someone that you are standing close to can be an assault.

Sarah works for a terrible boss. Her boss John is verbally abusive and rude, but since it is a job that pays well, she never really pays attention to what he says. Instead, she just tolerates it. He does not make any harassing or sexually offensive remarks. He is just loud and rude. Sarah has worked for John for five years.

One morning, Sarah was getting everything ready for the day. She had come to work a little early and was straightening up her desk to tackle her day.UNIT x STUDY GUIDE

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Yesterday, after John left, she had taken a message. John’s sister had called and said not to forget his brother’s birthday party this Saturday. She had left the written message on John’s desk and started her day the next morning while waiting for him to come in.

John came marching into the office looking very agitated, more so than usual. Sarah was working at her desk. Suddenly, her chair is spun around while she is sitting in it, and John is standing before her, enraged. Sarah almost falls out of her chair. John raises his hand, and Sarah thinks for sure he was going to hit her. She curls up in a ball and prepares for him to hit her. John suddenly slams his hand down on her desk next to her and starts screaming that the message was from his sister-in-law because his sister has been dead for six months. He continues to scream and physically threaten her by his stance and raising and lowering his fist.

John never actually touches Sarah, but she is terrified and in real fear for her safety. As soon as John leaves to go back to his office, Sarah grabs her purse and goes running out of the building. She is so scared that she goes straight home and does not even tell HR. Sarah is told she has abandoned her job and is fired.

Once she has calmed down, she brings a lawsuit against John and the company. John is outraged when he is dragged into the human resources (HR) office. He admits he lost his temper at Sarah’s incompetence, but he tells HR and the company’s in-house counsel he never touched her. He did not hit her or touch her at all. He just yelled.

John is terminated for assaulting another employee.

In this case, the intent behind the tort was evident by John’s actions. He intentionally spun Sarah’s chair, intentionally threatened her, and intentionally pounded his fist. It does not matter what he intended the outcome to be. He has committed an assault by threatening Sarah. An assault can occur without any contact. It is based upon the threat the victim feels.

Criminal Aspects of Health Care

Most of what we have discussed so far has involved civil claims, which are claims brought by one person against another seeking monetary damages. This is different from criminal charges. Criminal charges are brought by a governmental entity, such as the local, state, or federal government. While some of the intentional torts also have a criminal counterpart, there a number of criminal claims that are within the healthcare spectrum.

Patients and the government can file criminal charges within their jurisdictions for fraud, abuse, criminal negligence, murder, rape and sexual assault, or theft. These are some of the possible criminal charges in the healthcare field.

Criminal negligence, for instance, requires a higher burden of proof for the government.

For example, a patient is recovering from surgery. He calls the nurse and asks for pain medication. The nurse asks the doctor who is on call that night. That doctor is tired and waiting for his shift to end so he can go on vacation. He is annoyed that he has to work and wants to leave. When he responds to the nurse, he tells her the patient can have painkillers and writes down the amount and dosage. The doctor, however, is in a hurry, misplaces the decimal point, and unintentionally overdoses the patient by ten times the amount. The nurse asks the doctor to confirm the dosage. The doctor yells at the nurse, “Of course it is correct! I wrote it. I am the doctor! Just administer it like a nurse should.”

The nurse tells the doctor she would just call the next doctor to confirm the dosage if he did not have time. The doctor responds with the following: “Your job is not to question me, and if it happens again, I will get you fired!”

The nurse is scared for her job and follows the doctor’s orders. The dosage is to be repeated every four hours. The patient dies from the repeated overdoses in the next 48 hours.UNIT x STUDY GUIDE

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In this instance, the doctor could be accused of criminal negligence because of his total disregard for patient safety. If the patient had received one or even two overdoses, it is possible he could have recovered. The doctor and hospital could have been sued civilly for medical malpractice, but in this case, the doctor made the error and prevented the nurse from catching it. This could rise to the level of criminal negligence since the doctor did not allow the nurse to double-check the dosage which could have saved the patient’s life.

In conclusion, health care has many legal risks and potential hazards for both providers and patients. Patients have the ability to bring claims against providers who have injured them. The government has the ability to bring criminal charges against providers whose actions against patients rise to the level of criminal activity, as in the example above.