Law & Ethics for Health Professionals: Chapter 05

Witness Testimony

9 out of 10 lawsuits are settled out of court, but health care practitioners are often asked to give testimony. Given in court or an attorney's conference room in pretrial deposition

Interrogatory or Pretrial Discovery Phase

Court sets a trial date Pretrial motions may be made and decided. Example: Defendant may ask for dismissal. Plaintiff may amend complaint, change venue Discovery procedures to uncover evidence. Subpoenas issued Depositions Interrogatory

The unintentional tort of negligence is the basis for professional malpractice claims and is the most common liability in medicine.

Hospitals have also been found guilty of negligence. Under the theory of corporate liability, hospitals have been found to have an independent duty to patients, including a duty to grant privileges only to competent doctors, to supervise the overall medical treatment of patients, and to review the competence of staff physicians.

Punitive To punish the offender

How serious was the breach of conduct? How much can the defendant afford to pay? In some cases, the amount of damages is set by law.

res ipsa loquitur "The thing speaks for itself"; also known as the doctrine of common knowledge. A situation that is so obviously negligent that no expert witnesses need be called.

It means that the mistake is so obvious—such as leaving a sponge or surgical instrument inside a patient after surgery or operating on the wrong body part—that negligence is obvious.

Trial Phase

Jury selected & trial begins Opening statements made Witnesses are called Closing arguments - no new evidence presented Judge instructs the jury Jury verdict Final judgment handed down.

Nominal To recognize that rights of the patient were violated, though no actual loss was proved

Legal rights of the patient violated? Actual loss proved? Token award, usually $1

Liable

Legally responsible or obligated. While all competent adults are liable, or legally responsible for their actions, both on and off the job, agency has held that employers are vicariously liable for the acts of their employees performed as part of their employment.

Consequential To compensate for losses caused indirectly by a product defect

Loss covered by product warranty? Personal injury? No limit on damages if personal injuries

General compensatory To compensate for injuries or losses due to violation of patient's rights

Physical disability? Loss of earnings? Mental anguish? Loss of service of spouse or child? Losses to date? Future losses? Specified by court. Dollar value need not be proved; loss must be proved.

duty of care The legal obligation of health care workers to patients and, sometimes, nonpatients.

Physicians have a duty of care to patients with whom they have established a physician-patient relationship, but they may also be held to a duty of care toward people who are not patients, such as the patient's family members, former patients, and even office personnel. Generally, if actions or omissions within the scope of a health care practitioner's job could cause harm to someone, that person is owed a duty of care.

Pleading Phase

Plaintiff files a complaint with the clerk of the court. A summons is issued by clerk and delivered to defendant Defendant's attorney files an answer to summons If a cross-complaint is made, the plaintiff files a reply.

Phases of a Lawsuit Patient feels injured Patient seek advice from attorney. Attorney takes case Gets expert witness on standard of care violation

Pleading Phase Interrogatory or Pretrial Discovery Phase Trial Phase Appeals Phase

Appeals Phase

Posttrial motions may be filed Appeals made for the case to be reviewed by a higher court The judge can affirm, reverse, or modify a decision. Judgment is final after all appeals have been exercised.

The following guidelines can help all health care practitioners stay within the scope of their practices and operate within the law and the policies of any employing health care facility.

Practice within the scope of your training and capabilities. Use the professional title commensurate with your education and experience. Maintain confidentiality. Prepare and maintain health records. Document accurately. Use appropriate legal and ethical guidelines when releasing information. Follow an employer's established policies dealing with the health care contract. Follow legal guidelines and maintain awareness of health care legislation and regulations. Maintain and dispose of regulated substances in compliance with government guidelines. Follow established risk management and safety procedures. Meet the requirements for professional credentialing. Help develop and maintain personnel, policy, and procedure manuals.

Privileged communication refers to information held confidential within a protected relationship. Attorney-client and physician-patient are examples of relationships in which the law, under certain circumstances, protects the holder of information from forced disclosure on the witness stand.

Privileged communication statutes vary from state to state, but in most states, patients may sue a physician or any other health care practitioner for breach of confidence if the holder released protected information and damage to the patient resulted. In many states, breach of confidence is grounds for revocation of a physician's license.

Medical groups maintain that high damage awards in tort cases have led to a malpractice insurance crisis for physicians, especially those in high-risk specialties such as obstetrics-gynecology, orthopedic surgery, and general surgery.

Recent studies and news articles have reported that doctors in some states are participating in walkouts and demonstrations, relocating to states where caps have been legislated on medical malpractice damage awards, limiting procedures, performing additional patient tests to cover all liability bases, and even leaving the profession.

Law of agency

Referred to as agency, refers to the common law situation in business where the employer authorizes the employee to deal with a third person, the customer, on the employer's behalf.

Reasonable person standard

We are responsible for our actions (or our failure to act) under the reasonable person standard. That is, we may be charged with negligence if someone is injured because we failed to perform an act that a reasonable person, in similar circumstances, would perform or if we committed an act that a reasonable person would not commit.

subpoena duces tecum A legal document requiring the recipient to bring certain written records to court to be used as evidence in a lawsuit.

The subpoena commanding a witness to appear in court and to bring certain medical records is called a subpoena duces tecum. Failure to obey a subpoena may result in contempt-of-court charges. punishable by fines or imprisonment.

Respondeat Superior

"Let the master answer." When an agency relationship exists, the principal (employer/master) is responsible for any injuries his agent (employee) causes while dealing with the third person (plaintiff). Injuries claimed may be physical, emotional, and financial.

Special compensatory To compensate for losses not directly caused by the wrong

Additional medical expenses? Specified by court. Dollar value and loss must be proved.

Courtroom Conduct

Appear as required. Do not be late Bring required documents Refresh memory about all facts Speak slow, use lay terms Don't loose temper or try to be funny Answer all questions straightforward Use "as I recall" statements Prepare and tell the truth Appear well groomed

Arbitration is a method of settling disputes in which the opposing parties agree to abide by the decision of an arbitrator. An arbitrator is either selected directly by the disputing parties or chosen in one of the following two ways: Under the terms of a written contract, an arbitrator is chosen by the court or by the American Arbitration Association. If no contract exists, each of the two involved parties selects an arbitrator, and the two arbitrators select a third.

Arbitration may be binding, in which the two parties agree to accept the decision of the arbitrator in lieu of going to trial, or nonbinding, in which the disagreeing parties may choose to go to trial if neither party likes the arbitrator's decision.

In an attempt to address rapidly rising premiums for medical malpractice insurance, some states have placed caps on damage awards in medical malpractice cases.

Attorney organizations, however, insist that damage caps are unfair to injured patients.

Two types of depositions

Discovery depositions Depositions in lieu of trial.

Four elements must be present in a given situation to prove that a health care professional is guilty of negligence. Sometimes called the "four Ds of negligence," these elements include:

Duty—The person charged with negligence owed a duty of care to the accuser. Dereliction—The health care provider breached the duty of care to the patient. Damage—The health care provider's dereliction of duty caused injury to the patient. (Depending on the outcome of malpractice trials, monetary awards to plaintiffs may be court-ordered as compensation for proven injuries. These awards are referred to as damages.) Direct Cause—The breach of the duty of care to the patient was a direct cause of the patient's injury.

Employers have general liability for:

Employment Buildings and Grounds safe upkeep. Automobiles. Must be adequately insured for liability Employee Safety: Provide a reasonably comfortable and safe work place. A general safety procedure book for medical office workers should include guidelines for the handling of hazardous laboratory wastes and materials.

nonfeasance The failure to act when one should.

For example, a newly certified emergency medical technician (EMT) is first on the scene of a traffic accident. An injured motorist stops breathing and appears to be in cardiac arrest. The EMT, though trained in cardiopulmonary resuscitation, "freezes" and does nothing. The patient dies. In failing to act, the EMT could be guilty of nonfeasance.

malfeasance The performance of a totally wrongful and unlawful act.

For example, in the absence of the employing physician, a medical assistant determines that a patient needs a prescription drug and dispenses the wrong drug from the physician's supply. Medical assistants are not licensed to practice medicine, and the wrong drug was dispensed, so the act was totally wrongful and unlawful and could be called malfeasance.

Patient Safety Standards

Health care practitioners are human and make mistakes. Report the mistake to attending physicians and supervisors and on the patient's medical record, and tell the patient they have been harmed. To lie could cause facilities to lose their Joint Commission accreditation.

Patient Safety Goals

Identify patients correctly. Use two ways: name, date of birth patients get correct blood Get test results to the right staff person on time. Before a procedure, label all medicines in containers, syringes, cups, and basins, Find out what medicines the patient is taking. Check alarms on medical equipment Use CDC and WHO guidelines for hand cleaning. Prevent infections Prevent infections from central lines Infection after surgery Urinary tract infections Look for suicide patients Correct surgery is done on the correct patient and place on the body. Mark the body part.

Agency may be expressed or implied

If agency is expressed, a written contract exists, naming the employee as the employer's agent. If agency is implied, both parties have agreed, although not explicitly in writing, that the employee will act on the employer's behalf. In the health care environment, agency is most often implied. Health care practitioners act as their employers' agents when they schedule patient appointments; speak with patients, their families, and representatives; help with or perform patient exams; order supplies for the workplace; file insurance claims; and so on. Agency often comes up in personal injury cases when an injured plaintiff sues both a defendant and the defendant's employer under the rule of respondeat superior,

Physicians and many other professional health care providers carry liability insurance, which pays damage awards in the event of a negligence or malpractice suit up to the limits of the policy

In a survey of 4,000 physicians surveyed by Medscape in 2015, the following specialties said they had been sued: Ob/Gyn/Women's health85% Surgery 83% Orthopedics 79% Radiology 72% Anesthesiology 58% Internal medicine/Family medicine 46% Oncology 34%

wrongful death statutes State statutes that allow a person's beneficiaries to collect for loss to the estate of the deceased for future earnings when a death is judged to have been due to negligence.

In most states, a cap has been placed on the amount of damages that can be recovered in a civil action for wrongful death.

Alternative dispute resolution (ADR) consists of techniques for resolving civil disputes without going to court.

Some states require mediation and/or arbitration for certain civil cases, while in other states, alternative dispute resolution methods are voluntary.

PRETRIAL SCREENING BEFORE A LAWSUIT Before a lawsuit is actually filed, informal screenings, or pretrial screenings, may be held by a neutral party to assess the relative strengths of each party's case and determine whether the situation merits going to trial.

Such screenings are a way to discourage cases that are not based on merit and save costs to both parties. typical costs at this stage range between $24,000 and $90,000—and pretrial screenings allow both parties to avoid these costs and to avoid the stress inherent in experiencing a lawsuit. They can help educate plaintiffs that there may not be sufficient grounds for a successful lawsuit. One reason for the high number of meritless claims of medical malpractice is that plaintiffs are often confused about what does and does not constitute negligence.

misfeasance The performance of a lawful act in an illegal or improper manner.

Suppose a physician orders his or her nurse-employee to change a sterile dressing on a patient's burned hand. The nurse changes the dressing but does not use sterile technique, and the patient's burn becomes infected. The nurse is legally authorized to carry out the physician's instructions in dressing the patient's hand but violated proper procedure in carrying out the physician's order.

Traditionally, expert witnesses did not have to be called to testify in a medical malpractice lawsuit alleging res ipsa loquitur, but courts have made exceptions in many cases and allowed expert witness testimony. Judicial consideration of this doctrine varies. Generally, for res ipsa loquitur to apply, three conditions must exist:

The act of negligence must obviously be under the defendant's control. The patient must not have contributed to the act. It must be apparent that the patient would not have been injured if reasonable care had been used.

For a lawsuit to succeed under respondeat superior, the injured plaintiff must prove:

The injury to the plaintiff occurred while the employee was actually working for the employer. The injury was caused by something the employee would ordinarily do while working for the employer. The employer benefited in some way, however small or indirect, from the action the employee was performing when the injury occurred.

Two kinds of testimony Fact Expert

Witnesses may offer two kinds of testimony: fact and expert. Health care practitioners or laypersons may offer fact testimony, and this type of testimony concerns only those facts the witness has observed. For example, regarding testimony in a medical malpractice case, medical assistants, LPNs/LVNs, and registered nurses may testify about how many times a patient saw the physician, the patient's appearance during a particular visit, or similar observations. Only experts in a particular field have the education, skills, knowledge, and experience to give expert testimony.

privacy Freedom from unauthorized intrusion

it is also their ethical and legal duty to safeguard a patient's privacy and maintain confidentiality.

medical facility custodians are nonpatients to whom a duty of care is owed. Various drugs, equipment, and supplies are used and discarded daily in a medical facility. Procedures for the proper disposal of drugs and potentially hazardous materials should be detailed in a facility's safety manual, so that employees who handle these materials do not accidentally prick themselves with used needles or otherwise injure themselves.

physicians may have a duty under standard of care to warn nonpatients of danger, as in the case of a psychiatric patient who threatens harm to others or in the case of a patient with a communicable disease.