Legal Aspects of Healthcare Ch. 4

Define breach of confidentiality.

Unauthorized disclosure of protected health information.

Explain the term MALPRACTICE

professional misconduct by not following a standard of care prevalent to that profession. Failing of a physician to follow a standard of care, which results in harm to the patient.

Before an individual can bring a lawsuit what must be established?

A relationship between the plaintiff and the defendant.

Why is a physician-patient relationship considered to be contractual?

Because it involves both OFFER (request for treatment) and ACCEPTANCE (agreement to render the treatment)

Describe 2 types of apologies that a healthcare provider can express.

1. A FULL APOLOGY: offering expression of sympathy and admission of responsibility for injury 2. a PARTIAL APOLOGY: offering expression of sympathy only. It is hoped that apologies of either type will decrease the number of medical malpractice lawsuits.

What four elements must be proven to have a successful negligence claim be proven?

1. A duty of care is owed to the patient 2. A breach of this duty of care 3. A causal connection between the breach of duty and the patient's injury 4. There are Damages

The theories of liability can fall into three areas. What are they?

1. Breach of Contract 2. Intentional Torts 3. Nonintentional Torts

How can medical staff privileges be curtailed?

1. For failure to meet applicable quality of care standards set by the board 2. By misconduct of the physican.

State the three types of damages stated in the book

1. Nominal Damages 2. Actual Damages 3. Punative Damages

How may a physician-patient relationship be terminated?

1. Physician may withdraw from the contract, but must give sufficient notice to the patient so they have time to find another physician. (pt. is cured or died; or failed to comply w/ phys's orders.) 2. Patient may dismiss the physician 3. Physician and patient may mutually agree to end the relationship

What are the three health-care relationships discussed in the book?

1. Physician-patient 2. Hospital-patient 3. Hospital-physician

What are the two purposes of statutes of limitations?

1. To force a plaintiff to bring the lawsuit forward during a time when events will still be fresh in everyone's memory and 2. To allow potential defendants a time frame from which to know that lawsuit can no longer be brought against them.

What might a court consider in determining that an employement relationship existed and what is the most important?

1. Who selected/hired the employee. 2. Who pays the employee 3. Who has the powere to fire the employee 4. Who has control of the details of the employee's work. This one is most important.

What are the four element that must be proven for the tort of Intentional Infliction of Emotional Distress?

1. the defendant must act intentionally or recklessly so as to cause distress to the plaintiff 2. the defendant's conduct must be extreme and outrageous 3. the conduct must be the cause of patient's distress 4. prove severe emotional distress

When does the physician-patient relationship begin?

Begins when the patient requests treatment and when the physician agrees to treat the patient (exists as an express or implied contract)

IMPLIED CONTRACT

A contract in which some of the terms are not expressed in words but exists when the conduct of the parties and circumstances of the situation create an understanding (implied) that an agreement has been reached.

What is actual damages also known as?

Compensatory damages (compensate for losses)

What is chartiable immunity?

A defense used by hospitals (charitable institutions) to be shielded from liability for any torts committed on its property or by its employees. created to insure assets that were allocated for charitable purposed would not be used for reasons other than charity. However, not used too much anymore.

Explain Statutes of Limitations

A fixed time period, set by law, in which a lawsuit must be brought forth.

What is the locality rule and is it used now?

A standard of care is measured in a given situation solely against the pracitces of other medical professionals in the same local area. (not used very much anymore duto ease of transportation)

What doe EMTALA state?

Act applies to all hospitals that participate in , and receive monies from , the Medicare program. The act states that if a patient shows up with an emergent medical situation or is in active labor, the hospital must follow certain guidelines and treat the patient until the patient is stabilized. Once the Emgcy condition is stabilized the hospital may decide to: a. continue treatment b. transfer patient to another facility or c discharge patient

Explain FAILURE to WARN

Aka: Failure to Protect. Is a negligence theory that applies to a psychotherapist's failure to take steps to protect an innocent third party... if they are aware of their patient's intent to harm someone, they must tell / warn.

When a patient signs certain forms and agrees to pay the healthcare institution for services rendered, what type of contract has been established?

An express contract to receive healthcare.

Explain duty of care;

An obligation, to which the law gives recognition and effect, to conform to a particular standard of conduct toward another. Requires a person to behave in a particular way... Not conforming to this standard could result in harm to another.

What lawsuit eliminated Charitable Immunity, and why?

Bing v. Thunig. court reasoned in this case that charitable institutions should be forced to compensate persons for the injuries that institutions caused.

Define Breach of Duty of Care

Breach of Duty of Care means that the medical professional failed to maintain a certain standard of care... the standard of care is the level of care a reasonably prudent professional would have rendered under the same/similar circumstances.

Besides physical damage what does liability for injury also include?

Damage to a person's rights, reputaion, or property (includes breach of one's health information)

Once causation has been proven between the breach of duty and the injury what is the patient entitled to?

Damages

Spell out EMTALA and what is another name for theis Act.

Emergency Medical Treatment and Active Labor Act (EMTALA)

What is credentialing?

Examination by the hospital's governing board, of the physician's background, training, experience and licensure against established criteria. If all criteria are met, the physician is admitted to the medical staff with hospital privileges.

There is an exception to the rule (does hospital have to treat all who arrive @ its door?)

Exception to rule is Emergency-Care Situation Rule. If it is an emergency or a pregnant female patient arrives in active labor. Hospital must have a procedure for assessing those who appear at their door... assess whether or not they can be treated at that hospital, or be transferred to another facility for treatment.

What is the difference between false imprisonment and false arrest?

False Imprisonment - INTENTIONAL detention or restraint of someone against her will withough legal justification. False Arrest = INTENTIONAL detention or restraint of someone with the intent to make an arrest or actually make an arrest without legal justification. ** Anyperson falsely arrested is also falsely imprisoned** McGlone v. Landreth (shows false arrest & false imprisonment)

State a situation(s) where "Res ipsa loquitur" can apply.

Foreign object left inside a body after surger Ceiling tile falling on top of a patient in his bed.

What are medical staff privileges?

I f the physician meets all requirements in the credentialing process he/she will be granted medical staff privileges to perform duties within a certain scope and limit at the facility, but he/she cannot practice outside of this approved scope.

What does it mean when it is stated that vicarious liabillity is a derivative concept?

If a jury determines that the employee is not liable, then liability cannot be imposed on the employer under this theory. But the employer COULD be found liable under other theories outside of vicarious liability.

Assault

Intentional Tort Occurs when an individual is threatened with bodily harm or is placed in reasonable anticipation of being touched in a way that is insulting or harmful.

Explain Medical Abandonment

Intentional Tort One-sided severing of Physician-Patient relationship (by the physician) without giving the patient reasonable notice at a time when there is a necessity for continuing care.

Battery

Intentional Tort - Actual physical contact that causes bodily harm or offense. Touching another person without their permission... often causing harm/offense.

Explain Defamation, libel, Slander

Intentional Torts Defamation: wrongful injuring of another person's character or reputation. Libel: Defamation in print, writing, picrues or signs Slander: Defamaion expressed orally or with transitory gestures. In order for defamation to be claimed, the statement (libel or slander) has to be made to a third person... not directly to the person involved.

What type of theory of liability are assault and battery, defamation, invasion of privacy and medical abandonment?

Intentional Torts... torts committed by persons with the intent to do something wrong.

Explain Breach of Contract.

Medical professional who fail to perform a particular treatment, care or procedure as promised,.... or if implied results are not achieved as a result of treatment.

Explain Assumption of Risk.

Method used to limit liability either completely or in part. A plaintiff who voluntarily exposes himself to a known and appreciated danger may not recover damages caused by incurring that risk. Defendant must prove that: a. plaintiff knew of the risk b. assumed the risk voluntarily and c. was not coerced

Explain the term NEGLIGENCE

Most frequently used theory of liability used to support medical malpractice claims. Negligence refers to someone failing to do (or not to do) what a reasonably prudent person would do (or not do) in a similar situation.

Comparative Negligence (ST homework)

Negligence is measured in terms of percentages. The amount the plaintiff contributed to her own injuries is given a percentage which is then subtracted from the overall award of damages. If proven, recovery of damages is reduced proportionately.

Is the plaintiff limited to demonstrating that the defendant, medcial professional, deviated from the appropriate standard of care as stated in the book?

No

Is malpractice actions only limited to physicians?

No - nurses, lab techs, HIM professionals - May be brought against anyone trained in a particular field with professional standards.

Is a claim for nonperformance the same thing as a claim for improper performance?

No - these are very different. Nonperformance = not doing what is expected as promised... i.e. not performing the surgery or treatment. Improper Performance = performing a procedure impropery or incorrectly.

Is this Act only concerned with Medicare patients?

No it applies to all patients. EMTALA holds hospitals and physicians participating in Medicare responsible for following specific guidelines.... they must follow these guidelines regardless whether the patient(s) in question are eligible for Medicare.

Are the statutes of limitation the same between state to tstate and between the type of Lawsuit?

No.

Does a hospital have to treat every patient that arrives at its door?

No.

Does the Good Samaritan statute protect all physicians in the Emergency Department?

No... It only protects medical professionals OUTSIDE of the hospital setting.

What type of theory of liability are negligence res ipsa loquitur, vicarious liability, corporate negligence and failure to warn?

Nonintentional torts... torts committed by person(s) who lack the intent to do something wrong.

Do hospitals have vicarious liability over their medical staff?

Not usually - physicians are independent contractors. However, Cleveland Clinic physicians are "employees" of the CCF. (paid salaried employees)

What is technical battery?

Occurs when a medical professional, in the course of treatment, exceeds the consent given by the patient( does more than they should have done according to the consent). Though not intended to do harm and it may aid the patient, the medical professional did not have permission to do more unless there is an emergency situation involved.

How would the hospital-patient relationship be discontinued?

Patient discharged from hospital or dies Patient leaves hospital AMA (against medical advice)

How does the paintiff show that the defendant, medical professional, deviated from the appropriate standard of care?

Plaintiff may introduce evidence general standards of care established in state laws and regulations governing the profession. b.He can find general standards of care in professional assoc. or accrediting organizations for the profession (textbooks, handbooks etc) c. He can obtain institution's policies and procedures for specific care guidelines. d. he can obtain expert testimony to estabish breach in standard or care

Explain governmental immunity

Plaintiffs cannot sue the government unless the government entitiy consents to the lawsuit. Federal Claims Act of 1946 abolished U.S. government's immunity from tort liability & guidelines/conditions for suing US gove/t were adopted.

What are exemplary damages also known as?

Punative Damages... they are severe and PUNISH and make and EXAMPLE of offenders

What is vicarious liability also referred to as?

RESPONDEAT SUPERIOR

What is the difference between a reasonably prudent person and a reasonably prudent professional?

Reasonably prudent person is someone with average intelligence and experience in an area.... Reasonably prudent professional is there is a higher standard based on the area of professionalism and training.

Describe Intentional Infliction of Emotional Distress

Refers to a defendant's conduct that is so extreme and outrageious that it causes the plaintiff to experience severe emotional distress; and the defendant engaged in the conduct with the intent to cause the emotional distress.

Explain Good Samaritan Statutes

Statutes protect physicians & other rescuers who render care in an Emergency care situations outside of the hospital setting... they are protected from civil liability as a result of their acts or omissions of rendering medical care should their actions cause further harm

Under the HITECH act, who else must be notified if a breach of confidentiality is confirmed? When must they be notified?

The Secretary of Health and Human Services must be notified immediately if the number of affected individuals is more than 500. If there are less than 500 individuals affected then Secretary of HHS must be notified just once a year.

What is basis of every negligence claim?

The allegation of a breach of duty of care... meaning the medical professional failed to meantain a certain standard of care.

Explain Contributory NEgligence

The conduct of the plaintiff contributed to their injury (or the lack of conduct .... Not following the doctor's orders.) Contributory negligence usually means that the plaintiff is not entitled to recover any damages.

Explain Invasion of Privacy (Intentional Tort)

The dissemination of information about another persons private and/or personal matters. Four Elements: 1 Unwarranted appropriation or exploitation of an individual's personality 2. A publication of an individual's private affairs causing embarrassment 3. A wrongful intrusion upon an individual's private concerns or activities. 4. Some form or publicity that paints the person in a false light or image.

Explain Vicarious Liability.

The employer is responsible for the negligent acts of its employees which are comitted within the course and scope of their employment. (ie. hospital is responsible for its employees and their conduct)

Explain Corporate negligence.

The hospital owes a duty directly to a patient with regard to care and treatment.

What happens once the patient has demonstrated that the medical professional breached the standard of care?

The patient must establish that it was this breach of care that CAUSED his injury.

What will happen if not all four elements in Malpractice are proven?

The plaintiff will lose the case.

What does "Res ipsa loquitur" mean?

The thing speaks for itself

What happens if a facility's standards of care are set higher than state law?

Then the facility's standards take precedent over state law standards for care... they facility's higher standards set the norm.

Explain Comparative Negligence

This builds on contributory Negligence, but is not as harsh in the outcomes. Proof that the plaintiff contributed to their OWN injuries serves to reduce the amount of damages the plaintiff will recover.

Explain Assault and Battery

This is an INTENTIONAL TORT. 2 different theories used together. Assault occurs when an individual is THREATENED with bodily harm or is placed in reasonable ANTICIPATION of being touched in a way that is insulting. BATTERY is actual physical CONTACT that causes bodily harm or offense. Touching another person without their permission

Contributory Negligence (ST homework)

Used to limit a defendant's legal liability. Conduct of Plaintiff that contributes in part to the injury the plaintiff received. Insome states, finding of contributory negligence on the plaintiff's part is sufficient to bar any form of recovery. If proven, recovery of damages is barred.

How do the statutes of limitations affect minors?

Usually take effect after the age of majority for the particular state. The extension is call "tolling the stature of limitations".... i.e. if a minor commits a crime, the statute of limitations will extend the case for however many years up to when he reaches age where he can be tried as an adult (18).

When does a hospital - physician relationship begin?

With the Credentialing process for giving the physician permission to practice medicine at the hospital by eneabling the physician to have "medical staff privileges" at the facility.

Is assault and battery usually a crime punishable under criminal law?

Yes.

Do hospitals have a duty to ensure that their medical staffs are competent?

Yes. Of course. Failure to do so may result in liability to the patient.

According to the HITECH act of 2009, does the provider or business associate have to notify the patient of a confirmed breach of confidentiality? If yes, when must the patient be notified?

Yes. The provider or Business Associate must notify the patient within 60 days of discovery.

If a hospital disobeys this Act, can the hospital be held liable?

Yes... They can be fined for violation. Case BURDITT v. US DEPT. of HEALTH & HUMAN SERVICES... Pregnant woman in labor w/ high blood pressure; per obstetrician's orders she was transferred to a hospital 170 mi. Had baby en route. obstetrician fined for violating EMTALA.

EXPRESS CONTRACT

a contract in which the terms and responsibilities are expressed verbally... either orally or in writing.

What elements must be proven for a claim of "Res ipsa loquitur" to be successful?

a). The injury is such that it would not have occurred unless someone was negligent b). The medical professional had exclusive control & management of the instrument or cause of the accident. c). The injury could not have occurred as a result of any action by the patient.

Punitive / Exemplary Damages

award in excess of the actual damages and are severe enough to PUNISH or make and EXAMPLE out of the offender.

Nominal Damages

minimal amount of money awarded for a minimal injury

Actual / Compensatory Damages

monetary awards to "make the patient whole" and restore him to his position before the injury. Damages compensate for actual losses.

May courts and juries use common sense?

yes - of course.