Ethics: Chapter 3 - Tort Law & Intentional Torts

Qualified Privilege: statements made

as result of a legal or moral duty to speak in interests of 3rd persons -w/out malice

Duty to use due care is a legal obligation of

care, performance, or observance imposed on individuals

example of Implied Warranty

consumers have right to assume that food is not contaminated -Jacob E. Decker & Sons v. Capps

Determining Standard of Care is adopted by the

court

Assault is

deliberate threat coupled with apparent ability to do immediate physical harm to another. -Actual contact not necessary.

example of Express Warranty

drug manufacturer represents it product to be free from addiction & is not -Crocker v. Winthrop Laboratories

Absolute Privilege: statements made

during judicial & legislative hearings -confidential communications between spouses

Determining Standard of Care is applied to the? if there is no such enactment?

facts of the case by the trial judge or jury -Regulation or decision

Example of Nonfeasance

failing to order diagnostic tests or prescribe medications that should have been ordered

Ordinary Negligence is

failure to do what a "reasonably prudent person" would or would not do.

Defamation is

false oral or written communications to someone other than person defamed that tends to hold that person's reputation up to scorn or ridicule in eyes of others.

Causation (Foreseeability) is the reasonable anticipation that

harm or injury is likely to result from an act or an omission to act.

Duty created by statute, the plaintiff must have been

injured in a way that the statute was designed to prevent

Duty created by statute, the plaintiff must show that the

injury would not have occurred if the statute had not been violated

Battery is

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

Determining Standard of Care is established by

legislative enactment or administrative regulation -judicial decision

Libel: Performance Appraisals are not

meant for general publication

Some medical Standards of Care are influenced by

medical ethics -For example, a decision concerning termination of resuscitation efforts is an area in which the standard of care includes an ethical component

National Standard is the

most currently accepted standard of care on a national basis

Defamation of character is the

offense of injuring a person's character, fame, or reputation by false & malicious statements.

Implied Warranty is one that exists by

operation of the law as a matter of "public policy" for protection of the public

Slander is what form of Defamation?

oral form

Example of Malfeasance

performing abortion when prohibited by law

Medical malpractice is negligence committed by a

professional person such as a -nurse -physician -pharmacist

for Slander, person who brings suit must

prove special damages.

Public Figures are vulnerable to

public scrutiny

Appraisal must be

published in defamatory manner that injuries one reputation

Breach of Duty is the deviation from

recognized Standard of Care

Duty to use due care is imposed on individuals to conform to a

recognized Standard of Care that will safe guard the rights of others

The four elements of negligence must be presented in order for the plaintiff to

recover damages caused by negligence

Example of Misfeasance

removal of a healthy left kidney instead of the diseased right kidney

When defamatory words, slander, refer to person in professional capacity, professional does not need to

show that words caused damage

Express Warranty includes

specific promises or affirmations made by seller to buyer.

It is the obligation to perform according to a

standard of care that may encompass either doing or refraining from doing a particular act.

"Reasonably Prudent Person" is the community's ideal of

what is considered reasonable behavior of a hypothetical person

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

Fraud is the tort of

willful & intentional misrepresentation that could cause harm or loss to a person or property

Duty created by statute, the defendant must have been

within the specified class of persons outlined in the statute

Libel is what form of Defamation?

written form -Signs -Letters -Photographs -Cartoons

6 reasons for reducing use of restraints

1. Development of policies and procedures that conform to state & federal guidelines 2. Education & orientation of staff 3. Education for patients & families 4. Sound appraisal of need for restraints 5. Application of least restrictive restraints 6. Continuous monitoring of patients to determine continuing need for restraints

Elements of Negligence that must be present in order to establish negligence are

1. Duty to use due care 2. Breach of duty 3. Injury/Actual damages 4. Causation

3 examples of Battery

1. Failure to obtain consent prior to surgery. 2. Administering blood against patient's express wishes. 3. Physically restraining one who refuses to eat.

3 Forms of Negligence

1. Malfeasance 2. Misfeasance 3. Nonfeasance

2 examples of Intentional Infliction of Mental Distress

1. Mother shown premature infant -Johnson v. Women's Hospital 2. Verbally abusive physician -Greer v. Medders

3 legal theories for Products Liability

1. Negligence 2. Breach of warranty (Express & Implied) 3. Strict liability

3 Categories of Tort Law

1. Negligent 2. Intentional 3. Strict liability

Degrees of Negligence

1. Ordinary 2. Gross

3 Legal Justification for restraint or seclusion

1. Person represents a danger to self or others. 2. Criminal conduct. 3. Persons with highly contagious diseases, as provided by state or federal statutes.

3 examples of False Imprisonment

1. Restraining patient without cause (i.e. retraining and not feeding a patient due to bills not paid) 2. Locking patient in secluded room without consent.

3 examples of Fraud

1. purposeful concealment from patient the presence of surgical sponges in his/her abdomen following surgery 2. Submitting claims for reimbursement on expansive meds rather than on less expansive meds 3. Submitting multiple bills to patient for only 1 visit

2 examples of Assault

1.Person attempting to touch another unlawfully must possess apparent present ability to commit battery. 2.Person threatened must be aware of or have actual knowledge of an immediate threat of a battery and must fear it.

5 Defenses to Products Liability

1. Assumption of the Risk 2. Intervening Cause 3. Disclaimers 4. Contributory Negligence 5. Comparative Fault

Proximate Cause & Foreseeability is considered what type of element of Negligence?

Causation

What is the most common cause of malpractice suits against physicians?

Delay in treatment

A defense in a case where the patient disregards the manufacturers inserts

Disclaimers

An example of Defamation is? A. Assault B. Slander C. Fraud D. Liber E. B and D

E (Slander & Libel)

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.

Nonfeasance

Failure to act when there is a duty to act

Person who is physically restrained from leaving a healthcare faculty for not paying a bill is a victim of

False Imprisonment

In Negligence, what describes the conduct that is expected of an individual in a given situation

Standard of Care -duty to use due care

Liability without fault is another name for?

Strict liability

Examples of Negligence by *Omission* of an act is failure to

-preform thorough history & physical exam -assess patient's nutritional needs -administer medications -order diagnostic tests & follow-up if results are abnormal

Under Causation, Injury must have

-resulted from breach of duty -been foreseeable

Examples of Duty to use due care

-treat emergency patient -provide timely care, stabilize, and transfer -hire competent employees

False Imprisonment is the

-unlawful restraint of individual's personal liberty or -unlawful restraining or confining of an individual

4 Objectives of Tort Law

1. *Culpability* (find fault for wrong doing) 2. *Deterrence* of wrongful acts thru assessment of monetary damages 3. *Preservation* of peace btwn individuals 4. *Compensation* to indemnify injuryed person/s

general Standard of Care that must be exercised describes what a

"reasonably prudent person" would or wouldn't act under "similar circumstances"

Define Negligence

(Carelessness) Unintentional commission or omission of an act that a "reasonably prudent person" could or couldn't do under given circumstances

Reasonableness of Conduct is judged in light of

(Similar Circumstances) -Circumstances at the time of injury -Circumstances of the alleged wrongdoer/s at the time of injury (e.g. age, gender, physical condition, education, training, licenses held, mental capacity)

Proof of Harm Not Required to recover damages when

-Accusing a person of a crime. -Accusing a person of having a loathsome disease. -Using words are harmful to to a person's profession or business. -Calling a woman unchaste.

Examples of Negligence by *Commission* of an act are

-Administering wrong medication, dosage, or medication to wrong patient -Performing surgery without consent, on wrong patient, or wrong surgery

Categories of Intentional Tort

-Assault and Battery -False Imprisonment -False Arrest -Defamation of Character (slander, libel) -Fraud -Invasion of Privacy -Intentional Infliction of Mental Distress

Health Care Fraud

-Billing Tradename Drugs/Issuing Generic -Office Visits/Double Billing -Billing for Services not Rendered -Accepting referral fees

Elements of negligence required to establish Product Liability

-Duty = Product manufactured by defendant -Breach = Product defective at time it left manufacturer -Injury = Plaintiff injured by product -Causation = Defective product proximate cause of injuries

Strict liability is regardless of either

-Fault -Intensions or -Negligence

Mental suffering (distress) includes

-Grief -Shame -Public humiliation -Despair -Shame -Human pride

Negligent Torts vs. Intentional Torts

-Intentional Torts: Intent is present & a Willful Act is ALWAYS involved -Negligent Torts: Intent is NOT present & (Willful Act) may not involve any wrong doing

Proof of Fraud

-Misrepresentation by the defendant. -Knowledge of falsity. -Intent to reduce reliance on misrepresentation. -Justifiable reliance by the plaintiff. -Damage to the plaintiff.

How does one distinguish between negligence and malpractice?

-Negligence = often WITHOUT Intent -Malpractice = WITH intent

Products Liability & Res Ipsa Loquitur must establish

-Product did not perform in way intended -Product not tampered with by buyer/3rd parties -Defect existed at time it left defendant

Define Criminal Negligence

-Reckless disregard for the safety of another person -Willful indifference to an injury that could follow

Defenses to a Defamation Action

-Truth: no liability for defamation if it can be shown that statement is true -Privilege: Absolute or Qualified

Invasion of Privacy is the 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/kept confidential

Proof of Defamation

-false & defamatory statement. -Communication of a statement to a person other than the plaintiff. -Fault on the part of the defendant. -Special monetary harm

Gross Negligence

-intentional or wanton omission of care that would be proper to provide or -commission of an act that would be improper to perform

for Public Figures, suits are generally dismissed in absence of

-malice -actual knowledge statements are false -recklessness as to truth

Breach if Duty occurs when

-physician fails to respond to on-call duties -employer fails to conduct a pre-employment check

For Injury, what must be established?

Actual damages

A defense in a case where the patient is voluntarily exposed to risks, such as, radiation therapy & chemotherapy.

Assumption of the Risk

All of the following are defenses to product's liability except? A. intervening cause B. patient fraud C. disclaimer D. contributing negligence

B

Which is NOT intentional tort? A. Assault & Battery B. Negligence C. False Imprisonment D. Fraud E. Invasion of privacy

B

Touching a person without consent is Assault or Battery?

Battery

Failure to conform to or departure from a required duty of care (obligation) owed to a patient is considered as a

Breach of Duty

Legal rule that says a seller, distributor or manufacturer of a defective product is liable to a person injured by that product regardless of whether the defendant did everything possible to make sure the defect never happened. A. breach of warranty B. intentional negligence C. strict product liability D. Willful Act

C

Define Tort

Civil wrong (other than breach of contract) committed against a person/property (real or personal) that the court provides a remedy in the form of action for damages

The hometown standard, we want to do things our way, is what type of Standard?

Community Standard

A defense in a case where the patient is injured due to concurrent negligence of both manufacturer & plaintiff

Comparative Fault

Intentional Infliction of Mental Distress

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

A defense in a case where the patient uses of product in a way it was not intended to be used.

Contributory Negligence

Physician has a patient come in for fertility, but because this is not covered by insurance he codes for erectile dystfunction. This is an example of: A. malpractice B. malefesance C. negligence D. fraud

D

Misfeasance

Improper performance of an act

Healthcare organization that allows unsafe conditions and does nothing to address it causing a person to be injured, leads to the organization to be liable. why?

Injury was foreseeable and the organization had a duty to care

Malfeasance

Intentional performance of an illegal or improper act

A defense in a case where the patient has an IV solution contaminated by product user

Intervening Cause

The legal wrong that is a violation of a person's right to his or her own space is

Invasion of Privacy

(Strict) Products Liability

Liability of a manufacturer, seller, or supplier of chattels to a buyer, or other 3rd party for injuries sustained because of a defect in a product.

Lack of action by a medical professional often without intent is

Medical Negligence

The commission or omission of an act, as judged against the actions of a "reasonably prudent person" is

Negligence

Negligence is NOT considered an Intentional Tort because

Negligence can be with or without Intent (Intent is present in Intentional Torts)

Define Malpractice

Negligence, or carelessness, of a professional person (nurse, practitioner, pharmacist, etc)

If there are no injuries, is damage due?

No

Example of Strict liability

Products liability

Example of Malpractice

Surgeon conducts a surgical procedure on wrong body part

Civil wrong committed by one person against another person or property of another is known as

Tort

Another word for a civil wrongdoer is a

Tort-feasor

Under Causation, what must be the cause of the patient's injury?

acting or conducting in departing from recognized Standard of Care

Standard of Care is a measuring stick for properly assessing

actual conduct required of an individual

Breach of Duty is the failure to

adhere to an obligation