Answer each Question from Health Law and Ethics

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CHAPTER 3

Tort Law: Negligence

Learning Objectives

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

Define negligence and explain how it differs from malpractice.

Explain how the commission and omission of an act differ.

Explain the elements necessary to prove a negligence case.

Describe the importance of foreseeability in a negligence case.

Tort Law: Definition

A tort is a civil wrong, other than a breach of contract, committed against a person or property (real or personal) for which a court provides a remedy in the form of an action for damages.

Objectives of Tort Law

Preservation: To preserve peace between individuals

Culpability: To find fault for wrongdoing

Deterrence: To discourage the wrongdoer (tort-feasor) from committing future wrongful acts

Compensation: To indemnify injured person(s)

Categories of Tort Law

Negligent torts

Intentional torts

Strict liability

Negligence

Negligence is a tort.

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

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 or body part

Performing the wrong surgical procedure

Omission of an Act

Failing to conduct a thorough history and physical examination

Failing to assess and reassess a patient’s nutritional needs

Failing to administer medications

Failing to order diagnostic tests

Failing to follow up on abnormal test results

Failing to conduct a time-out prior to surgery

Malpractice

Negligence or carelessness of a professional person

Nurse practitioner, pharmacist, physician, physician’s assistant

Example: A surgeon who conducts a surgical procedure on the wrong body part

Criminal Negligence

“Reckless disregard” for the safety of another

Willful indifference to injury that could follow an act

Forms of Negligence

Malfeasance

Misfeasance

Nonfeasance

Malfeasance

Execution of an unlawful or improper act

Example: Performing a partial birth abortion in the third trimester when prohibited by law

Misfeasance

Improper performance of an act

Example: Wrong-sided surgery, such as the removal of a healthy left kidney instead of the diseased right kidney

Nonfeasance

Failure to act when there is a duty to act

Example: Failing to order diagnostic tests or prescribe medications that should have been ordered or prescribed under the circumstances

Degrees of Negligence

Slight negligence: Minor deviation of what is expected under the circumstances

Ordinary negligence: Failure to do what an ordinary, prudent person would do

Gross negligence: Intentional or wanton omission of required care or performance of an act

Elements of Negligence

Duty to use due care

Standard of care

Breach of duty

Injury/actual damages

Causation

Proximate cause

Foreseeability

Duty to Care

A legal obligation of care, performance, or observance imposed on one to conform to a recognized standard of care to safeguard the rights of others

Standard of Care

The standard of care describes the conduct expected of an individual in a given situation.

The general standard of care that must be exercised describes what a “reasonably prudent person” would or would not do under the “same or similar circumstances.”

It is a measuring stick for properly assessing actual conduct required of an individual.

The reasonableness of conduct is judged in light of the circumstances apparent at the time of injury and by reference to different characteristics of the actor (e.g., age, gender, physical condition, education, knowledge, training, and mental capacity).

Reasonably Prudent Person

Describes a nonexistent, hypothetical person who is put forward as the 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 and training

Licenses held

Mental capacity, etc.

Determining Standard of Care

Established by a legislative enactment or administrative regulation

Adopted by the court from a legislative enactment or an 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 the testimony of an expert witness as to the standard of care required.

Community standard of care vs. national standard of care

Duty Created by Statute

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

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

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

Hastings Case: Duty to Care

The duty to care in this case cannot be reasonably disputed.

Louisiana, by statute, imposes a duty on hospitals licensed in Louisiana to make emergency services available to all persons residing in the state regardless of insurance coverage or economic status.

The hospital’s bylaws provide that patient transfer should not occur without due consideration for the patient’s condition.

Community vs. National Standard

Community standard

The hometown standard: We want to do things our way.

National standard

Most currently accepted standard of care on a national basis

Ethics and Standard of Care

Some medical standards of care are influenced by medical ethics.

Example: A decision concerning termination of resuscitation efforts is an area in which the standard of care includes an ethical component.

Case: Hiring Practices, Duty of Employer (1 of 2)

The nurse was hired sight unseen over the telephone.

The 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 and broke the resident’s leg.

What was the duty of the employer?

Case: Hiring Practices, Duty of Employer (2 of 2)

Standard expected:

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

Breach of Duty

The failure to conform to or the departure from a required obligation owed to a person

The obligation to perform according to a standard of care may encompass either doing or refraining from doing a particular act.

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

Hastings Case: Breach of Duty

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.

Breach of Duty Examples

Examples of breach of duty:

A physician fails to respond to his or 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 (1 of 2)

The nurse was hired sight unseen over the telephone.

The 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 and broke the resident’s leg.

What was the breach of duty?

Case: Hiring Practices, Breach of Duty (2 of 2)

The employer failed to verify the applicant’s licensure.

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

Discuss the element of injury.

Injury

Actual damages must be established.

If there are no injuries, no damages are due.

Hastings Case: Injury

Causation in Hastings v. Baton Rouge Hospital was well-established.

In the ordinary course of events, Hastings would not have bled to death in a hospital emergency department over a 2-hour period without some surgical intervention to save his life.

Case: Hiring Practices, Injury (1 of 2)

The nurse was hired sight unseen over the telephone.

The 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 and broke the resident’s leg.

What was the injury?

Case: Hiring Practices, Injury (2 of 2)

The resident suffered a broken leg.

The hospital is vicariously liable for the nurse’s conduct.

Criminal charges are applicable in this case against the nurse.

Causation

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

Act or conduct in departing from recognized standard of care must be the cause of the patient’s injury.

Injury must have resulted from breach of duty.

Injury must have been foreseeable.

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.

Hastings Case: Causation

Causation in Hastings v. Baton Rouge Hospital was well-established.

In the ordinary course of events, Hastings would not have bled to death in a hospital emergency department over a 2-hour period without some surgical intervention to save his life.

Case: Hiring Practices, Causation

The nurse was hired sight unseen over the telephone.

The 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 and broke the resident’s leg.

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 and conduct an adequate background check

Injury resulted from the breach of duty

Injury was foreseeable

Case: Failure to Administer Proper Nourishment

Failure to administer proper hydration

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

Describe what is meant by foreseeability.

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.

Hastings Case: Foreseeability

In Hastings v. Baton Rouge Hospital, it was highly probable that the patient would die if the bleeding was not stopped.

The broad test of negligence is what a reasonably prudent person would foresee and would do in light of this foresight under the circumstances.

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.

Case: 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.

Cases: Foreseeability

O’Neill v. Montefiore Hospital (1960)

O’Neill visits ER at 5:00 AM with chest pains.

Niles v. City of San Rafael (1974)

Kelly Niles suffers head injury.

Hastings v. Baton Rouge Hospital (1985)

19-year-old arrives at ER with stab wounds to the neck.

Surgery: Sponge and Instrument Count

Dr. Smith owns the local outpatient surgery center.

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

Annie, an employee, failed to conduct the count following Bill’s surgery.

Two months later, Bill, suffering from extreme abdominal pain, was noted to have several sponges and an instrument in his abdomen, which had caused him to develop a massive infection.

Will Dr. Smith be liable for Annie’s negligence?

Decision: Sponge and Instrument Count

Yes!

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

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

Review Questions (1 of 2)

Describe the objectives of tort law.

Explain the difference between negligence and malpractice.

Describe the elements of a negligence that the plaintiff must establish in a negligence suit.

Review Questions (2 of 2)

Describe the importance of causation in establishing liability in a negligence suit.

Explain the importance as to how foreseeability applies in a malpractice case.

Answer each Question from Health Law and Ethics

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