DH 46 Test 2

Res judicata

"A thing or matter settled by judgment" -When a legal ruling has been made by a competent court of jurisdiction and no appeals are possible. -Keeps people from taking the same issues to different courts.

Stare decisis

"Let the decision stand" -The court will base its decision on previous case law. -Legal precedent

Res ipsa loquitur

"The thing speaks for itself" -Legal doctrine that permits the plaintiff to prove negligence or malpractice without proving fault

Legally Mandated Reporters

-Child visitation monitors. -Health practitioners (nurses, physicians, etc.) -Commercial or photographic print processors in specified instances. -Specified public positions, ex. teachers, social workers, probation officers, etc. -Public protection positions, ex. police, sheriff, CPS, etc. -Clergy members. -Fire fighters (except volunteer firefighters), Animal control officers, Humane society officers.

Elements of negligence or malpractice that must be shown before a lawsuit can go forward

-Duty owed to the client. -Breach of duty by the professional. -Harm to client. -Harm caused by the breach of duty

Examples of malpractice

-Failure to meet the standard of care. -Failure to foresee consequences that one with his particular skills and education should foresee

Physical indicators in the child of physical abuse

-Fractures, lacerations, bruises that cannot be explained, or explanations which are improbable given the extent of the injury. -Burns, ex. cigarette, rope, scalding water, iron, radiator. -Facial injuries (black eyes, broken jaw, broken nose, bloody or swollen lips) with implausible or nonexistent explanations. -Subdural hematomas, long-bone fractures, fractures in different states of healing. -Pattern of bruising (e.g., parallel or circular bruises) or bruises in different stages of discoloration, indicating repeated trauma over time.

Environmental Problems revealing abuse

-Hazardous conditions, e.g., broken windows. -Health risks, e.g. presence of rats, feces, no running water, no heat. -Extreme dirt or filth affecting health

Assessment With the Family

-If abuse is occurring in the family, parents and other family members may not be inclined to discuss this area of concern. -Meeting with the child separately from parents may help gather info. -If the parents/caretakers make statements such as "we know how to take care of him," "we have a sure-fire cure for that," or similar references regarding their parenting strategies it is critical to get a clear description of the parents' behavior.

What to Tell the Parents/Caretaker

-If the child is at risk due to disclosure, it is important to discuss this with the parents and make a statement about further harm to the child. -Tell the parents the reasons for the referral

Parental or Caregiver Clues revealing abuse

-Is unable/unwilling to meet child's basic needs and provide a safe environment. -Tells you of homicidal thoughts/feelings toward child. -Tells you of use of objects (belts, whips, clothes hanger) to discipline the child. -Is unable to describe positive characteristics of child. -Has unrealistic expectations of child. -Unduly harsh or rigid about childrearing. -Singles out child as "bad" "evil" "out-of-control". -Berates, humiliates child. -Turns to child to have his/her own needs met. -Is impulsive, unable to use internal controls. -Cannot see child realistically, attributes badness to child, or misinterprets child's normal behavior (e.g. Takes an infant's crying as a sign of intentional meanness). -Is indifferent to child.

Assessments of False Allegations

-Keep abreast of current research on improved methods of interviewing and treatment. -Maintain integrity by assessing each case on its own merits. -Suspend judgments until all the information is gathered. -Do not rely on a single-source techniques; the most reliable evaluations include the use of multiple techniques

Due process

-Law must be reasonable and definite as applied. -Fair procedures must be followed in enforcing the law.

Assessment with a nonverbal child

-Nonverbal children will often "act out" their concerns in play. -It is important to assess abuse based on extreme or persistent behaviors that are consistent with indicators of abuse. -This by itself doesn't mean abuse is occurring.

Contractual obligations of the client

-Pay a reasonable fee in a reasonable time. -Cooperate in care. -Keep appointments. -Provide accurate health history/info. -Follow instructions including home care instructions. -Keep dental provider aware of status.

Contractual responsibilities of the provider to the client

-Possess proper license/certification. -Exercise reasonable skill, care, judgment in treatment and diagnosis. -Use standard drugs, materials, techniques. -Complete treatment in a reasonable time -Never abandon client. -Complete procedures. -Provide adequate instructions. -Refer appropriately. -Confidentiality. -Maintain appropriate level of knowledge -Practice within the scope of practice. -Accurate records. -Comply with laws. -Practice in code of ethics

Examples of breach of contract

-Provider promised the patient that the injury suffered would not occur. -Guaranteeing outcomes

A person is liable when...

... he is legally obligated to pay the injuries that he causes another individual

A contract exists between a client and healthcare professional when...

...the client agrees to a specific treatment

Treatment obligations cease if...

...the health care professional can do nothing more for the patient

Four basic areas in which abuse may be revealed

1) Environmental Problems. 2) Parental or Caregiver Clues. 3) Physical Indicators in the Child. 4) Behavioral Indicators in the Child.

Fictitious allegation populations

1. "Coached" children in custody disputes. 2) Adolescents who "make up" convincing reports out of boredom, infatuation, or in an effort to retaliate.

What must be reported by all legally mandated reporters

1. A physical injury. 2. Child sexual abuse. 3. Willful cruelty or unjustified punishment. 4. Unlawful corporal punishment or injury. 5. Severe or general Neglect. 6. Child exploitation, child pornography and child prostitution

A lawsuit can be filed against an oral healthcare provider in 2 areas of civil law:

1. Contract violation. 2. Tort violation.

Assessment with a verbal child

1. Create a safe environment. 2. Provide opportunities for spontaneous disclosure through verbal and non-verbal messages. 3. Ask the child to describe a particular day, the house and who lives there, etc. 4. Note changes in affect or voice.

Professionals' Internal barriers to reporting

1. Denial - refuse to believe child abuse is occurring. 2. Rationalizing - accept unrealistic explanations for how an injury occurred. 3. Betrayal - feel they are damaging the client-provider relationship. 4. Fear of breaking up a family

Basic elements in the process of determining whether there are grounds for reasonable suspicion

1. Do not try to conduct an investigation. 2. Do not make promises to the child you cannot keep, ex., promise not to tell anyone. 3. Avoid jumping to conclusions. 4. Must have a willingness and ability to inquire further - active, ongoing process. 5. Do not lead the child to say what they think you want to hear - no leading/coercive questions`

Clients have a right to...

1. Good care irrespective of ethnicity, gender, nationality, age, disability. 2. Receive accurate info about diagnosis, treatment, and prognosis. 3. Get info necessary for informed consent/refusal. 4. Confidentiality. 5. Know providers' credentials. 6. Reasonable continuity of care. 7. Examine and receive accurate copies of services and fees. 8. Treatment within scope of care and standard of care

Two methods to create a contract

1. Implied consent. 2. Express consent.

Three types of torts

1. Intentional. 2. Unintentional. 3. Strict liability

How to report suspected abuse

1. Make a report immediately by phone. 2. Within 36 hr. a written report must be forwarded.

A court will enforce an agreement made by a contract only if the following exist:

1. Mutual assent. 2. Consideration. 3. Two or more parties with legal capacity.

Reasons for terminating a patient

1. Nonpayment. 2. Contributory negligence/noncompliance. 3. Failing to keep scheduled appointments. 4. Failure to follow medication instructions (pre-med, pain med). 5. Failure to provide updated health history info. 6. Offensive/disruptive behavior. 7. Arriving for appointments incapacitated

If he child has given info that leads to a reasonable suspicion that he/she is being abused, let the child know...

1. You are concerned about what is going on (describe what the child has revealed) and that it is important to get some help now. 2. What to expect once the decision to report is made (i.e., that parents will be called and the Emergency Response Unit in the Child Protective Agency will be notified, etc.). 3. Make no guarantees about what will happen

Child abuse

A physical injury inflicted by other than accidental means on a child by another person. -Includes emotional abuse, sexual abuse, neglect, abuse in out-of-home care

Special damages

Actual expenses

The client-practitioner relationship can be terminated by the provider when?

After giving the client notice and an opportunity to secure an alternative source of future treatment

Mutual assent

Agreement of the parties to the terms of a contract

Contract

An agreement between 2 or more consenting and competent parties to do or not do a legal act

State supreme court

Appellate jurisdiction only

U.S. Court of Appeals

Appellate jurisdiction only

U.S. Supreme Court

Appellate jurisdiction only -Decisions cannot be overturned

Assessing sexual abuse with a verbal child

Ask non-leading questions about touching and affection in the family but use discretion(!); detailed questions will usually be asked by CWS/CPS: -Do you like it when people hug you? Is hugging a good thing or bad thing? If it is a bad thing, what makes it bad? • Where do you sleep? Where do others in your house sleep? What happens when you go to sleep? • What happens when you take a bath? • Does anyone ever touch you in a way that makes you feel uncomfortable? Where do they touch you? Does it make you feel scared or sad?

Assessing physical abuse with a verbal child

Ask non-leading questions about what happens at home when people get angry, drink or take drugs: -What happens when you get in trouble? • Does anyone throw objects Who does this? • Does anyone ever get mad enough to hit someone else? • What do they hit with? Who do they hit? Does anyone ever get hit hard enough so that the blow causes bruises or bleeding? How often does this happen? Is it scary?

Nominal damages

At the court's discretion (could be $1)

Tort law

Civil wrongs committed against a person or person's property

Unintentional torts

Committed with no intent to harm others but the defendant's conduct represents an unreasonable risk to others. 1. Negligence. 2. Malpractice.

Appellate courts

Courts with trial, appellate, civil, and criminal jurisdiction

Case law

Decisions/interpretations made by judges while deciding legal issues before them which are considered common law

Abandonment

Failure of the healthcare provider to provide services after he has established a relationship with the client -Must complete treatment already started

Negligence

Failure to use such care as a reasonable person would use under similar circumstances

T/F - It is legally required to inform parents that a referral is being made

False - in some cases informing parents may be contraindicated

T/F - A mandated reporter can both determine whether there are grounds for reasonable suspicion and conduct an investigation of the report

False - only a child protective agency or county designee can conduct an investigation

T/F - Therapists, and other mandated reporters, investigate and collect evidence

False - the investigation is conducted by Child Protective Agencies

T/F - Mandated reporters can report suspected abuse anonymously

False - they are required to give their names, but child protective agencies are required to keep the mandated reporter's name confidential, unless a court orders the information disclosed.

T/F - Crimes are either civil or criminal but not both

False. -e.g. if a client dies from gross neglience of a DDS he could be charged with criminal action manslaughter and civil charges for wrongful death

Misdemeanors

Fines <$1000 or imprisonment < 1 yr. -Vandalism, reckless driving, trespassing.

Contract damages

For breach of contract

Level of proof for criminal law

Guilt beyond a reasonable doubt -100%

Trial courts

Have trial jurisdiction. -e.g. traffic, probate, arraignments for felonies, small claims

Emotional abuse

Infliction of mental suffering or endangerment of emotional well-being

Comparative or contributory negligence

Injured party is held responsible for a portion or all of the injury

Reasonable suspicion

It is objectively reasonable for a person to entertain a suspicion, based upon facts that could cause a reasonable person in a like position, drawing, when appropriate, on his or her training and experience, to suspect child abuse or neglect."

Questions of law or fact

Jury determines fact Judge determines law

Malpractice

Negligent conduct of professional persons.

Severe neglect

Negligent failure of a person having the care or custody of a child to protect the child from severe malnutrition or medically diagnosed non-organic failure to thrive. -Includes the intentional failure to provide adequate food, clothing, shelter, or medical care

Breach of contract

Occurs if either party fails to comply with the terms of the contract

Client's Bill of Rights

Outlines client expectations and provides guidelines for provider conduct

General damages

Part of the harm, difficult to determine. -e.g. pain and suffering

Level of proof in civil law

Preponderance of evidence -50% + 1

Criminal law

Relates to acts considered offensive to society as a whole

Assessing neglect with a verbal child

Remember that homelessness does not necessarily mean neglect. • Do you have food in your house? What kind of food do you have? • Do you have a coat to wear?Does someone wash your clothes for you? • Do you have electricity?

Liability

Responsibility for a breach of duty

Law

Rules and regulations that govern society. -Reflects societal mores, attitudes, and needs

Felonies

Serious crime with fines >$1000 or imprisonment > 1 yr. or death sentence. -robbery, illegal drug use, murder

Statute of limitations

Specific periods within which a lawsuit must be filed after the event. -After that period, the right to initiate a lawsuit is lost

Equal protection

States may not enforce laws based solely on classification of persons such as race, age, gender, religion, disability, nationality

Standard of care

The degree of care that a reasonable prudent professional should exercise -Minimum requirements for acceptable client care

Behavioral Indicators in the Child of abuse

There is no one single reaction that can clearly be associated with child abuse. -The presence of behavioral indicators does not prove abuse but suggests to look further

Express consent

Through oral or written communication

Implied consent

Through signs, inaction, or silence

To whom do you report suspected abuse?

To a county welfare department or probation department or a police or sheriff's department, not including a school district police or security department.

Punitive damages

To punish deliberately wrongful conduct

Federal district court

Trial jurisdiction -Hear only matters involving federal law

T/F - If a mandated reporter confers with a superior about suspected abuse, and the superior disagrees and refuses to report, the individual with the original suspicion must report.

True

T/F - The best source of information is not what the child says, it is how the child behaves

True

T/F - Those persons legally mandated to report suspected child abuse have immunity from criminal or civil liability for reporting

True - No individual can be dismissed, disciplined or harassed for making a report of suspected child abuse.

T/F- Young kids are unlikely to fantasize or lie about abuse.

True - they are more likely to lie to protect an abusive parent

T/F - A person who fails to make a required report is guilty of a misdemeanor

True - they may also be found civilly liable for damages

Criminal action

Violation of a societal rule/ crime against society

Consideration

When one party gives up something of value and the other party makes a promise in exchange for that something of value. -Patient gives up money because the provider to make a promise to provide services for the money

When is child abuse reported?

When one who is a legally mandated reporter has knowledge of or observes a child in his or her professional capacity, or within the scope of his or her employment whom he or she knows or reasonably suspects has been the victim of child abuse or neglect

Civil action

Wrongful act against a person that violates his body, privacy, property, contractual rights

General neglect

negligent failure of a person having the care or custody of a child to provide adequate food, clothing, shelter, medical care, or supervision where no physical injury to the child has occurred

Physical indicators in the child of sexual abuse

• Bruising around genital area. • Swelling or discharge from vagina/penis. • Tearing around genital area, including rectum. • Visible lesions around mouth or genitals. • Complaint of lower abdominal pain. • Painful urination, defecation.

Behavioral Indicators in the Child of neglect

• Clingy or indiscriminate attachment. • Self imposed isolation. • Depression or passivity.

Physical indicators in the child of neglect

• Failure to thrive, a child's failure to gain weight at the expected rate for a normal child. A child who fails to thrive may have medical or psychosocial problems, or a combination of these. • Malnutrition or poorly balanced diet, ex. bloated stomach, extremely thin, dry, flaking skin, pale, fainting. • Inappropriate dress for weather. • Extremely offensive body odor. • Dirty, unkempt. • Unattended medical conditions e.g. infected minor burns, impetigo.

Behavioral Indicators in the Child of physical abuse

• Hostile or aggressive behavior toward others. • Extreme fear or withdrawn behavior around others. • Destructiveness, e.g. breaks windows, sets fires • Verbal abusiveness. • Out-of-control behavior, e.g. angry, panics, easily agitated.

Behavioral Indicators in the Child of emotional abuse

• Lacks self-esteem; puts self down constantly. • Seeks approval to an extreme. • Unable to be autonomous e.g., makes few choices, fears rejection. • Hostile, verbally abusive, provocative.

Behavioral Indicators in the Child of sexual abuse

• Sexualized behavior, ex. has precocious knowledge of explicit sexual behavior and engages self or others in overt or repetitive sexual behavior. • Hostility or aggression. • Fearfulness or withdrawn. • Self-destructiveness, ex. self-mutilates. • Pseudo-maturity, ex. seems mature beyond chronological age. • Eating disorders. • Alcoholism/drug abuse. • Running away. • Promiscuity.