Chapter 4: Tort Law - Negligence

Tort

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.

duty of care

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

Breach of Duty by State

Dawn v State sexual assault

Hastings: Causation

Hastings would not have bled to death in a hospital ED over a 2 hour period without some surgical intervention to save his life.

Three forms of negligence:

Malfeasance, Misfeasance, Nonfeasance

Proximate Cause

when it is reasonably foreseeable that a breach of duty will result in an injury.. The breach of duty must be the proximate/direct cause of the resulting injury.

Commission of an act would include:

- Administering the wrong medication, the wrong dosage of a medication, or medication to the wrong patient. - Performing a surgical procedure without patient consent, a surgical procedure on the wrong patient or wrong body part, or the wrong surgical procedure

Responsibility to Protect Patient

- Booty v. Kent wood Manor Nursing Home, Inc. - 90yo pt wandered outside the nursing facility, fell, hip Fx —> Physical condition deteriorated and died - Staff was aware he strayed and the alarm system was deactivated and door propped open

Failure to Alert Patient of Misread Computed Tomography Scan

- Brooklyn, pt c/o severe HA, inability to open eyes, a sense of feeling in her legs - CT was administered, defendant conceded was misread by the staff physician as normal - radiologist reviewed the CT and concluded that it was NOT normal — the pt was not contacted about this revision

Duty to Hire Competent Employees

- Deerings West Nursing Center v. Scott - sufficient evident to support the findings that the employee's failure to obtain nursing license was the proximate cause of the visitor's damages and that the hiring was negligent and also shows a heedless and reckless disregard of others - Appellant violated the very purpose of Texas licensing statues by failing to verify whether Hopper held a current license vocational nurse (LVN) license. Appellant placed Hopper in a position of authority, allowed him to dispense drugs, and made him a shift supervisor. - This negligence resulted in the inexcusable assault on an elderly woman.

Failure to Provide a Safe Environment

- Dunahoo v. Brooks - Nursing facility breached duty when patient tripped over an obviously ill-placed light cord.

Elements of Negligence

- Duty of Care - Breach of Duty - Injury - Causation

Omission of an act would include:

- Failure to conduct a thorough history and physical examination. - Failure to assess and reassess a patient's nutritional needs - Failure to administer medications are prescribed - Failure to order diagnostic tests - Failure to follow up on abnormal or critical test results - Failure to conduct a "time out" to assure the correct surgical procedure is being performed on the correct patient at the correct site

Hastings Case: Duty to Stabilize the Patient

- Hastings v Baton Rouge Hospital - Medical malpractice action for wrongful death of 19 yo. Son. Stab wound, thoracotomy, stabbed in major blood vessel. - action was brought against the hospital, ED department physician, and thoracic surgeon on call - Hospitals are required to stabilize the patient prior to transfer — in this case the surgeon on call was able to treat this patient but decided to transfer him - Louisiana Supreme Court held that the Evidence presented to jury could indicate the defendants were negligent in their treatment of care

Dickinson v. Mailliard

- Hospitals must be license and accredited. - Statutory regulation — practice of medicine national in scope.

Cases Lessons Niles v. City of San Rafael

- Improve QOC by establishing and adhere in to policies and procedures - Provision of quality health care requires collaboration across disciplines - Physician to conduct thorough and responsible examination and order appropriate tests - Vital signs to be monitored and documented in medical records - Corrective measures must be taken when pt medical condition signals a medical problem. - Complete review of patients medical records before discharging - An erroneous diagnosis leading to the premature dismissal of a case can result in liability for both the organization and physician.

Professionals Held to a Higher Standard

- Kowal v. Deer Park Fire District - Specialists held to a higher standard of care than non specialist

Ethics and the Standard of Care

- Medical standards of care are influenced by medical ethics.

Community Versus National Standard of Care

- Moving away from reliance on the community and applying an industry or national standard. - 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 professional and organizations.

Duty to Treat Emergency Patient

- O'Nelll v. Montefiore Hosital - Pt. C/o pain in chest and arms, a part of the Hospital Insurance Plan (HIP) - nurse stated the hospital had no connection with HIP and the HIP physician stated pt would have to wait to be treated by HIP physician later in the morning - pt indicated told to go home and come back when HIP was open, wife concerned, but walked back home... shortly after arriving home pt died. - plaintiff sought recovery against the hospital for failure to render emergency treatment && against the physician for failure and refusal to treat - physician claimed he offered to come to the ED but pt said would see another HIP physician - dismissed and appealed in court, NY Supreme Court held that a physician who abandons a patient after undertaking examination or treatment can be held liable for malpractice. Proof: 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.

Failure to Refer

- Robinson v. Group Health Association Inc - Knee amputation could have been avoided if...

Causation NOT Established: Case Dismissed

- Stewart v. Newbold - pt admitted to hospital for cholecystitis and surgeon began antibiotics - county medical examiner stated cause of death result of blood-borne infection (Sepsis?)

Hastings Case: Breach of Duty

- The duty to provide for appropriate care under the circumstances was breached - Dr. Gerdes failure to make arrangement for another surgeon - Dr. McCool's failure to perform the necessary surgery - Patient had no chance of survival

Duty Set by Policies and Procedure

- The standard of care required to be followed by employees and agents of a hospital can be established through its internal policies, procedures, rules, and regulations. - If employee fails to adhere to the hospital's writte standards of care and a patient is injured, the employee is considered negligent in the case of injury

Hastings Case: Duty Set by Statute... To establish liability based on a defendant's failure to follow the standard of care outlined by statute, the elements must be present:

1 Defendant must have been within the specified class of persons outlined in the statute 2 Plaintiff must have been injured in way that the statute was designed to prevent 3 Plaintiff must have show that the injury would not have occurred in the statute had not been violated

Negligence

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. A form of conduct caused be heedlessness or carelessness that constitutes a departure from the standard of care generally imposed on reasonable members of society.

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 defedant's conduct

Degree of Negligence

Describes the three generally accepted "degrees of care" that can affect the amount of damages in a negligence case

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 medication, failure to order diagnostic tests or prescribe medications)

Breach of Duty

Failure to conform to or the departure from a required duty of care owed to a person. The obligation to perform according to a standard of care can encompass either performing or failing to perform a particular act.

Ordinary Negligence

Failure to do what a reasonably prudent person would or would not do under the circumstances

T/F The mere departure from a proper and recognized procedure is sufficient to enable a patient to recover damages

False, unless the plaintiff can show that the departure was unreasonable and the proximate cause of the patient's injuries.

But-for causation

If the crime would not have occurred but for the def's act, then the def is such a cause

Misfeasance

Improper performance of an act, resulting in injury to another (e.g., administering the wrong dose of a medication, wrong site surgery involving removal of a healthy left kidney instead of the disease right kidney.)

Slight Negligence

Minor deviation of what is expected under the circumstances

Malpractice

Negligence or carelessness of a professional person (NP, pharmacist, physician, PA)

Malfeasance

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

Injury

Physical harm, pain, suffering, and loss of income or reputation -

Criminal Negligence

Reckless disregard for the safety of another (e.g., willful indifference to an injury that could follow an act)

Causation

Requires that there be a reasonable, close, and causal connection or relationship between the defendant's negligent conduct and the resulting damages.

Communicate standard can be extremely important in any given situation...

Situation where doctor in remote area of Alaska has placed patients at an unnecessarily high risk by receiving phone call inquiries from nurses in Eskimo villages. This method of consultation may be the only possible one, and thus not at all unnecessary or a gross and flagrant violation.

Duty can also be established by _______ or _______ between the plaintiff and the defendant

Statue or contract

T/F: Duty of care can arise from a telephone conversation or out of a caregiver's voluntary act of assuming the care of a patient.

TRUE

A hospital could be found liable for the employee's negligence under....

The doctrine of respondeat superior

Gross Negligence

The intentional or wanton omission of required care or performance of an improper act

Standard of Care

What conduct is expected of an individual in a given situation. Based on what a reasonably prudent person would do or not do acting under the same or similar circumstances. Age, sex, physical condition, education, training, profession, knowledge, mental capacity, and requirements imposed by law determine the reasonableness of conduct. Court relies on expert witness when determining the standard of care required of a health professional in similar communities.

prima facie case of negligence

When the four elements of negligence have been proven, the plaintiff is said to presented "____" enabling the plaintiff to prevail in a lawsuit

Test for foreseeability

Whether one of ordinary prudence and intelligence should have anticipated the danger to others caused by his or her negligent act. The test is not for foreseeability is not what the wrongdoer believed would occur, it is whether the wrongdoer ought to have reasonably foreseen that the event in question would occur

Foreseeability

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