Chapter 6

Duty to Care

1st element of negligence, legal obligation of care imposed on one to safeguard rights of others, this can include duty to hire competent staff

Criminal Law-Purpose

Crime; maintain public order and safety, protect the individual, use punishment as a deterrent to crime, rehabilitate the criminal for return to society

Four elements of Negligence

Duty of Care, Breach of Duty, Injury/Actual Damages, Causation

Tort Law

a wrong, other than a breach of contract, committed against a person or property for which a court provides a remedy, generally in the form of monetary damages

Injury/Actual Damages

actual damages must be established, w/o injury damages cannot be awarded

Standard of Care

actual performance of an individual in a given situation will be measured against what a reasonably prudent person would or would not have done

Commission of an Act

administering wrong medication, wrong dosage of a medication, medication to the wrong patient performing procedure without patient consent, on wrong patient removing wrong body part failing to assess a patient's nutritional needs

Misdemeanor

an offense punishable by less than one year in jail and/or a fine i.e. petty larceny

Crime

any social harm defined and made punishable by law

Subpoena ad testificandum

appearance of a person at a trial or other investigative proceeding to give testimony

Criminal Procedure

arrest, arraignment, indictment, conference (prosecutor, defense attorney), criminal trial

Intentional Torts

assault & battery, false imprisonment, defamation of character, invasion of privacy, infliction of mental distress

Defense of One's Action

assumption of a risk, comparative negligence, contributory negligence, good samaritan laws

Negligence

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

Infliction of Mental Distress

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

The Court

decides questions of law

Duty created by Statute

defendant must have been within specified class of person outlined in the statute, plaintiff must have been injured in a way statue was designed to prevent, plaintiff must show that injury would not have occurred if the statute had not been violated

Assault

deliberate threat, coupled with apparent ability to do physical harm to another, actual contract not necessary

The Jury

determines questions of fact

Kinds of Evidence

direct, demonstrative, documentary, examination of witnesses, expert witnesses

Kinds of Contracts

employment contracts, exclusive contracts, commercial ethics and non competition agreements

Malfeasance

execution of an unlawful or improper act: performing partial birth abortion when prohibited by law, performing a procedure without having the appropriate credentials

Nonfeasance

failure to act when there is a duty to act: failure to prescribe antibiotics when indicated, failure to respond to emergency call

Omission of an Act

failure to administer medication, to order required diagnostic tests, to follow up on abnormal test results, to perform a "time out" to ensure the correct surgical procedure is being conducted on the correct patient at the correct site

Forseeability

form of causation, tested to see whether a person of ordinary prudence and intelligence should have anticipated danger to others caused by a negligent act

Legal issues

fraud

Fraud

i.e. billing scams by doctors to charge for more expensive medicine but dispense the cheaper medicine. medicare fraud

Defenses against recovery

ignorance of fact and unintentional wrongs, statute of limitations, sovereign immunity

Misfeasance

improper performance of an act: wrong sided surgery, leaving an instrument in the patient's body

Battery

intentional touching of another person in socially impermissible manner without person's consent

Defamation of Character

involves communications to someone other than the person defamed (insulted) that tends to hold that person's reputation up to scorn and ridicule slander, libel

Subpoena

legal order requiring the appearance of a person and/or the presentation of documents to a court or administrative body

Forms of Negligence

malfeasance, misfeasance, nonfeasance

Breach of Duty

must be a deviation from recognized standard of care, must be failure to adhere to an obligation

Causation

must be a reasonable close and casual connection btw the defendant's negligent conduct and resulting damages suffered: hastings case where person can't bleed to death over a 2 hour period without intervention

Malpractice

negligence of a professional person: surgeon who conducts surgery on the wrong body part, nurse who administers wrong medication injuring patient, pharmacist who mislabels a medication and the patient is harmed

Elements of a Contract

offer/communication, consideration, acceptance

Trial Procedures

opening statements: by plaintiff, by defendant burden of proof evidence defense of one's actions defenses against recovery closing statements judge's charge to the jury jury deliberation damages appeals

Pleadings

part of the trial procedure and courtroom, summons and complaint, answer, bill of particulars

Preparation of Witnesses

part of trial procedure, a witness handles questioning at a deposition or trial is often as important as the facts of the case, should be well prepared, prepare including review of all pertinent records

Discovery

part of trial procedure, process of investigating the facts of a case before trial: obtain evidence, isolate and narrow issues, gather knowledge of additional evidence, obtain leads for further evidence

Assault cont.

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

Burden of Proof

plaintiff is required to show that the defendant violated a legal duty; case is dismissed if the evidence does not support the defendant's allegations

Objectives of Tort Law

preservation of peach between individuals, fault-finding for wrongdoing, acts as a deterrence to wrongful acts, indemnify injured persons

Invasion of Privacy

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/keep confidential

Felony

serious crime (rape or murder) generally punishable by imprisonment in a state or federal penitentiary for more than one year

Contracts

special kind of agreement, either written or oral, that involves legally binding obligations btw two or more parties

Ethical Issues

truth telling, professional code of ethics

False Imprisonment

unlawful restriction of individual's personal liberty or unlawful restraining or confining an individual

When could Breach of Duty occur?

when a physician fails to respond to his/her on-call emergency room duties, failure to perform an adequate history and physical in the ED

Subpoena duces tecum

written command to bring records documents or other evidence described in the subpoena to a trial or other investigating proceeding