Med Law and Ethics - Mod 3 - Tort Law

What is the difference between assault and battery?

Assault is the threat to do harm, battery is the harm. Example: Approaching someone with a bat and stating you will hit them = assault. Hitting that someone with the bat = battery.

Which doctrine states that a healthcare organization is liable for the actions of their employees?

Vicarious Liability

Define: Vicarious liability

Vicarious Liability makes an employer liable for the torts of the employee while their employees are in performance of the work.

A wrongful act in healthcare is often a/an __________. Occasionally a wrongful act can be a/an __________.

civil liability, criminal liability

There are 4 elements of Prima Facie for negligence, what are they?

1. Duty of care (in healthcare a provider has a duty to treat patients and not cause harm while treating them.) 2. Breach of duty. (a healthcare provider performed surgery and injury occurred during the procedure then patients care was breached.) 3. Injury. (evidence that the breach of care caused the harm.) 4 Causation. (Proof of proximate cause. Proximate cause is an event that related to the injury was reasonably foreseeable.)

Prima Facie requires 4 elements be present, what are those 4 elements?

1. The defendant acted. (the doctor performed a lifesaving procedure) 2. The defendant had intent (to cause harm or offense) (the doctor intended to save the persons life). 3. That harm or offense occurred as a result of the defendants actions. (the plaintiff did not want to be saved.) 4. Actual harm or offense occurred. (the plaintiff has been negatively impacted by the doctor saving their life.)

Critics of the insurance industry cite what factors for increases in medical malpractice premiums?

1. excessive damages awarded by juries for medical malpractice cases. 2. profit-seeking behavior by insurance companies. 3. insufficient medical malpractice insurance competition. 4. inflation.

What is a tort?

A Civil wrongdoing

Define: Contracts

A contract is a binding legal agreement between parties. An example of a contract is a rental agreement or a cell phone service agreement.

A federal government employee is working repairing light fixtures in a building. While performing the repairs, this employee causes injury to a person who is walking through the building. The injured person contacts an attorney, and the attorney states that the injured party can file a claim against the federal government. What tort now permits claims against the federal government for negligence?

Federal Tort Claims Act

Jennifer assisted an injured woman at a scene of an automobile accident. Jennifer held compression on the woman's wounds while waiting for the ambulance to arrive. After the ambulance transported the patient to the hospital, Jennifer began to worry about being held liable for possibly having done something incorrectly causing further injury to the patient. What statute protects Jennifer from being liable?

Good Samaritan statute

Define: Compensatory damages

The most common type of damage, in which the defendant pays the plaintiff for their losses. There are two types: Economic damages (special damages) - The amount is easy to determine as it covers medical expenses, lost wages, other specific expenses associated with the injury or harm. Noneconomic damages (general damages) - damages that are not easily assigned a financial value such as pain and suffering.

T or F: Good samaritan's are immune from liability?

True, mostly. Individuals how act as good samaritans by assisting others in a medical emergency are immune from liability for outcomes of their actions. This is a federal law and applies to all 50 states, but states have their own specific laws as well.

T or F: Assault indicates the apprehension that a harmful act or offense will occur.

True.

T or F: In the past hospitals were exempt from all liability because they were considered charitable organizations?

True. It was referred to as charitable immunity and the landmark case that eliminated hospitals from being exempt was Darling v. Charleston Community Memorial Hospital.

Under vicarious liability, when are healthcare organizations responsible?

When they contract to provide medical services to patients via an independent contractor. When they had reason to believe that negligence would occur. When they do not make patients or the general public aware of the use of independent contractors, and subsequently the independent contractors are portrayed as employees or agent of the healthcare organization.

Under vicarious liability, when are healthcare organizations not responsible?

When they do not control the provider's method or manner of delivering services. When they clearly notify the patient and receive acknowledgement upon admission.

Liability for medical malpractice is an important concept in part because?

medical malpractice cases contribute to increased healthcare costs.

T or F: A HIPAA violation is criminal when it is done knowingly.

True.

There are 4 negligence defenses, what are they?

1. Contributory negligence. 2. Comparative negligence 3. Assumption of risk 4. Other doctrine.

What is the purpose of the statute of limitations?

Allows time for an injured individual to bring action for recovery and claims to be resolved while evidence is available and fresh

The U.S. Department of Health and Human Services (HHS) Office of Inspector General (OIG) refers all possible criminal liability cases to which governmental department?

Department of Justice

A facility could be penalized $100 to $50,000 per violation for the improper disclosure of PHI under the HIPAA law. What is the per calendar year fine for improper disclosure of PHI?

$1.5 million

The HITECH act imposes penalties when PHI is improperly disclosed. What is the minimum civil monetary penalty per violation?

$100 per violation

Define: Tort

A tort is a wrongdoing between private parties. An example of a tort is a patient accusing a provider of malpractice.

What contributes to the rising cost of healthcare?

All of above

Which of the following statements describes comparative negligence?

If the plaintiff contributed to the injury they can still be awarded compensation. If the plaintiff is found 20% responsible, they will receive 80% in damages

What must a plaintiff do to establish liability for a hospital/healthcare organization?

They must prove the healthcare organization did not uphold it's standard of care when care was provided. This is why thorough credentialing processes for all healthcare providers are essential.

T or F: Misconduct of a professional person is malpractice?

True

Define: other Doctrine

A type of negligence defense. A sudden emergency, or 'act of god' is an example of this. In a sudden emergency if the defendant did not have a history of prior negligence and acted in a way that a normal prudent person would act in an emergency situation, the plaintiff could not recover damages. In an act of god/natural disaster, if the defendant had no way to predict or prevent the extraordinary event then the plaintiff cannot collect damages.

Define: Assumption of risk

A type of negligence defense. If a plaintiff had knowledge of the risks, then the plaintiff cannot recover damages. Example: Plaintiff does not follow medical advise, they cannot recover damages for harm caused by not following that advise.

Define: Contributory Negligence

A type of negligence defense. These cases demonstrate that the plaintiff does not deserve compensation for the injury because their actions resulted in their own injury or suffering. Example: Plaintiff blatantly ignored warnings or failed to take reasonable measures to guard their own safety.

Define: Comparative negligence

A type of negligence defense. This means the plaintiff contributed to the injuries but can still receive compensation from the defendant. The amount recovered is based on percentage. Example: Plaintiff is found 20% negligent, they receive 80% in damages from the plaintiff. This is more common than contributory negligence.

Susan discovered that her health information was released without her written consent. She has consulted her attorney to determine the statute of limitations required to file a case. What is the purpose of a statute of limitations?

Allows claims to be resolved while evidence is available

An employee of General Hospital was charged with illegal disclosure of a patient's personal health information to obtain credit card information and used it fraudulently. What type of liability would this be considered?

Criminal liability

Define: Civil Law

Civil law focuses on disputes between two people. The plaintiff who is brining the suit and the defendant who is accused of the wrongdoing. Both parties are nongovernmental entities. Civil law is created from codified law, which is derived from statues, rules or regulations. When making a civil law decision the judge applies the codified law to the decision making process. The types of remedies are equitable and compensatory or punitive damages. The goal of the remedies is to make the plaintiff "whole" again.

Which of the following statements describe contributory neglignece?

Contributory negligence indicates that the reason the plaintiff cannot recive compensation is because their actions also led to the negligence. The defendant can also object to the claim of negligence by proving they were not liable or only partially liable. This type of defense is not common, although it is still used in some courts.

Which of the following is an example of a primary liability? Complex negligence, strict liability, clinical negligence, corporate negligence

Corporate negligence

Define: Nonfeasance

Failure to perform an act that an individual is under obligation to perform or that an individual under normal discretion would have done.

T or F: A higher risk for lawsuits results in lower medical malpractice premiums

False

T or F: Nominal damages recognize that there was wrongdoing but can only be awarded if there was an injury to the plaintff?

False

T or F: Prima Facie elements must be met to prove that healthcare providers followed their organization's standard of care?

False

True or False? Gross negligence implies reckless disregard for the rights of others in a criminal case.

False

T or F: Intentional infliction of emotional distress may result if it is proven that a patient was confined against their will

False.

T or F: to determine that someone is liable for negligence, at least three of the four prima facie elements must be met.

False. (all 4 must be met.)

Define: Misfeasance

Incorrect performance of an act that an individual would normally perform, or active misconduct that causes injury to another individual.

John is a defendant in a civil court case for approaching Jim, the plaintiff, with a baseball bat. While holding the bat, John threatened to strike Jim later that day. John did not strike Jim, but Jim filed a case with the police. Which tort could be applied to this instance?

Intentional Tort: Assault

Mr. Smith went into the hospital to have a procedure on his right leg. During this procedure, the doctor noticed a lesion on the patient's left leg and performed a removal of that lesion. However, Mr. Smith had only consented to the procedure for his right leg. Afterwards, the patient developed an infection of the left leg. Which tort could be attributed to this case?

Intentional Tort: Battery

Mr. Roberts has told hospital providers that he wishes to leave AMA (against medical advice). He is tired of being in the hospital and wishes to return home to his animals. The physician refuses to allow Mr. Roberts to leave the hospital. Which tort could be applied in this scenario?

Intentional Tort: False Imprisonment

What does IIED stand for?

Intentional infliction of emotional distress

Define: Malfeasance

Intentional wrongdoing or misconduct especially by a public official.

What are the three types of torts?

Intentional, Negligence, and strict liability.

Attorneys, accountants, and healthcare providers can be held liable for malpractice. What is the appropriate definition of malpractice?

Misconduct of a professional person

Define: Corporate negligence

It is a primary liability, indicating that the party carries direct responsibility. This doctrine states that healthcare organizations provide patients with proper care by retaining competent medical professionals, overseeing all healthcare professionals, and maintaining adequate facilities and equipment to keep the patient safe.

What does it mean when a statute of limitations is tolled?

It is postponed, suspended, or extended.

What does Respondeat Superior mean?

Let the master answer. Refers to vicarious liability and the employer being ultimately responsible if an employee is directly responsible for failure to meet obligation.

What is a negligence tort?

Negligence is an unintentional tort and describes a defendant's liability for negligence and standard of care as well as the negligence defenses.

Is criminal law included in private law?

No. Civil law is but criminal law is not.

What are the 3 types of damages?

Nominal, compensatory, punitive.

Which type of damages compensates the plaintiff for pain and suffering?

Noneconomic.

What are the 3 types of negligence?

Nonfeasance, misfeasance, and malfeasance.

What did The Federal Tort Claims Act adopted in 1946 do?

Permit claims against the federal government for negligence.

What are the characteristics of private law and what types of situations does it cover?

Private law involves the violation of rights and duties among nongovernmental entities including people and private organizations. Includes civil law and excludes criminal law. Private law includes: Contracts, property, torts, divorce, family court.

What is private law?

Private laws affect individuals.

Define: Property

Private property is anything that is owned by an individual. An example of a property issue is a land or property zoning dispute between neighbors.

What is proximate cause?

Proximate cause is the 4th element of Prima Facie for a negligence case. It means that the event that caused injury was reasonably foreseeable by the defendant. (example: performing surgery while under the influence of drugs or alcohol would be Proximate Cause. A ceiling light falling on the patient during a surgery is not proximate cause because the surgeon could not reasonably foresee that would happen)

What is public law?

Public law affects society as a whole.

Define: Punitive damages

Punitive damages exceed what the plaintiff seeks for compensatory damages. The jury can award punitive damages if they felt that the statement needs to be made concerning the severity of the negligence. Although a jury can award punitive damages, the plaintiff may not receive the amount awarded. Punitive damages can be appealed.

Which type of damages awards a financial amount exceeding what the plaintiff requested?

Punitive.

Typically wrongful acts in healthcare are matters of civil liability, but they can become criminally liable in certain circumstances. What's a circumstance that could be considered criminal?

Repeated unauthorized disclosure of information under HIPAA. The US Department of Health and Human Services Officer of the Inspector General would investigate any claims and refer any criminal acts to the US Department of Justice for investigation/criminal liability.

Define: strict liability

Strict liability imposes responsibility for damages without fault. In other words, a person is responsible for any loss or damages caused by their acts and omissions, even if they were not at fault. This theory applies to dangerous activities such as working a highly dangerous job. If the person gets injured during such an activity, that individual is held strictly liable for their injuries, even if they followed all safety precautions. The facility is not held liable for the injuries, regardless of the defendant's fault. (example: skydiving, bungee jumping. inherently dangerous activities you do anyway.)

What is a strict liability tort?

Strict liability torts focus on the act and not the intention.

Prima Facie requires 4 elements be present for IIED, what are those 4 elements?

The elements for IIED are difficult to meet purposefully and include: 1. An extreme and outrageous act was performed by the defendant. (example: Physician goes against the patients wishes and performs a tubal ligation during a cesarean section.) 2. Defendant acted with intentional or reckless disregard of the emotional distress their actions would cause. 3. Causation. Plaintiff must show that emotional trauma or stress would not have occurred if the defendant had not acted. 4. Sever emotional distress has been suffered due to the act. Manifesting as sleeplessness, anxiety, irritability, or the emotional inability to do things or go to places as previously demonstrated prior to the act.

Define False Imprisonment

The following elements must be proven: The victim was unable to leave. The victim had no means to escape. The restraint was unlawful. In a healthcare setting this could happen if healthcare provider refuses to allow the patient to leave without a legal reason for hospitalization such as a court order or request by law enforcement to keep the patient under medical supervision.

What is Darling v. Charleston Hospital?

The landmark case that ended 'charitable immunity' which was exemption of liability for hospitals.

Define: Malpractice

The misconduct of a professional person. Included are: attorneys, accountants, and healthcare providers. Medical malpractice refers specifically to the misconduct of a healthcare provider.

Define: Criminal law

The parties to the lawsuit are the state and the defendant. The defendant can be an individual or business. If the defendant is guilty there must be a remedy, usually a punishment for the crime committed including imprisonment and fines. In criminal law the government prosecutes the accused because the government believes that the party violated a statute or regulation.

Define: Prima Facie

The pieces of evidence that sufficiently support the claim.

Which of the following examples describe assumption of risk?

The plaintiff opted to have a procedure after the physician informed them that there could be further harm to the plaintiff as a result of a procedure. The plaintiff did not follow medical advise.

Define: Liability

The responsibility or legal obligation of one party as to another.

What are the characteristics of public law and what types of situations does it cover?

This type of law involves disputes between a governmental entity and one or more individuals or business organizations. One party in the lawsuit is the governmental entity, which can be the federal government, a state government, or a local government. The other party in the lawsuit is an individual or a nongovernment business organization. Types of public law include: Criminal law civil law administrative law tax law procedural law constitutional law

John was the defendant in a court case where it was determined that he was not liable due to an immunity from liability. This ruling of no liability does not mean that the __________.

all of the above

Medical malpractice insurance requires premiums to be paid by the physician in order to provide coverage in the event of an untoward medical event. Why is the cost of medical malpractice insurance high?

all of the above

What is an intentional tort

an intentional tort indicates willful misconduct that intentionally causes harm to an individual. Examples include Assault, battery, emotional distress, and false imprisonment.

Define: Nominal damages

another word for nominal is minimum. Nominal damages recognize that there was wrongdoing and can be awarded if the case did not involve an injury or if the plaintiff did not specify how much money was sought in damages.

Define unintentional torts

indicate wrongdoing by another person or organization that was not intentionally done to cause harm but nonetheless resulted in injury or harm. Example: Negligence.

What is an intentional tort?

intentional torts include battery, assault, false imprisonment, and intentional infliction of emotional distress.

What organizations/people historically had immunity from liability?

this type of immunity applied to government, public officers, charities, parents, children, and spouses, and it did not mean that the act didn't happen, but that the part was not liable. Most of these immunities have now been eliminated.