Chapter 3 Tort Law

Elements of Defamation

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

Health Care Fraud

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

Similar Circumstances

- Circumstances at the time of the injury - Circumstances of the alleged wrongdoers/s at the time of injury ~ Age ~Physical condition ~Education and training ~Licenses held ~Mental capacity, etc

Community v. National Standard

- Community Standard - National Standard

Breach of Warranty

- Express Warranty ~ Crocker v. Winthrop Laboratories (54)

Omission of an Act

- Failing to conduct a thorough history physical examination - Failing to assess and reassess a patient's nutritional needs - Failing to administer medications - Failing to order diagnostic tests - Failing to follow up on abnormal test results

Breach of Duty Examples

- For example, breach of duty occurs when... ~ a physician fails to respond to his/her on call duties ~ an employer fails to adequately conduct a pre-employment check (ex. licensure background check)

Breach of Warranty

- Implied Warranty ~ Jacob E. Decker & Sons v. Capps

Case: Accused of an Affair False Accusation

- It is libel, even though Dr. Doe is repeating a slanderous statement - The reverse is not true - the spoken repetition of a written defamation is still considered libel - The rule is: once libel, always libel

Strict Liability

- Liability without fault - Elements required to establish strict liability ~ Green v. Smith & Nephew AHP, INC (55) ~ Weber v. Charity Hospital of Louisiana at New Orleans (56)

Duty to Care

A legal obligation of care, performance, or observation imposed on one to conform to a recognized standard of care to safe guard the rights of others.

Case: Failure to Hydrate Causation

Caruso v. Pine Manor Nursing Center (42)

Gross Negligence

Intention or wanton "omission of care" that would be proper to provide or the "commission of an act" that would be improper to perform.

Cartoon

Jack draws a cartoon depicting Paul having a rendezvous with a new grad nurse in an empty patient room. The incident in fact never occurred.

Defenses to a Defamation Action

Judge v. Rockford Memorial Hospital (50)

Libel - Newspapers Articles

Keller v. Miami Herald Publishing (48) Wisconsin Association of Nursing Homes (48) Barry v. Bough

Libel - Performance Appraisals

Kraus v. Brandsletter (47) Schauer v. Memorial Care System (47)

3 Forms of Negligence

1. Malfeasance 2. Misfeasance 3. Nonfeasance

Public Figures

Drew v. KATV Television (51)

Injury

- Actual damages must be established - If there are no injuries, no damages are due

Commission of an Act

- Administering the wrong medication - Administering the wrong dosage of a medication - Administering medication to the wrong patient - Performing a surgical procedure without patient consent - Performing a surgical procedure on the wrong patient - Performing the wrong surgical procedure

Determining Standard of Care

- Adopted by the court from a legislative enactment or an administrative regulation - Applied to the facts of the case by the trial judge or jury, if there is no such enactment, regulation or decision ~courts often rely on the testimony of an expert witness as to the standard of care required

Strict Liability: Products

- Airco v. Simmons National Bank, Guardian, et al. (53) - Elsroth v. J & J (53) - Monk v. Doctors Hospital (53)

Intentional Torts

- Assault and Battery - False Imprisonment - False Arrest - Defamation of Character - Fraud - Invasion of Privacy - Intentional Infliction of Mental Distress

Intentional Infliction of Mental Distress

- Conduct that is outrageous that it goes beyond bounds tolerated by decent society - Greer v. Meders (52) - Johnson v. Women's Hospital (52-preme)

Examples of Duty

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

Products Liability Cases

- Manufacture of unsafe drugs - Unsafe design of anesthesia machine - tainted Tylenol capsules - Negligent operation of Bovie Machine

Cases: Foreseeability

- O'Neill v. Montefiore Hopital (34) - Niles v. City of San Rafael (41) - Hastings v. Baton Rouge Hospitals (35)

IV. Causation

- Reasonable anticipation that harm or injury is likely to result from an act or an omission to act - Act or conduct in departing from recognized standard of care must be cause of patient's injury - Injury must have resulted from breach of duty - Injury must have been foreseeable

Ethics and Standard of Care

- 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

Case: Hiring Process

- Standard expected: the employer had a "duty" to validate the nurse's professional license

Standard of Care,

- The Standard of Care describes the conduct expected of an individual in a given situation - The general Standard of Care that must be exercised describes what a "reasonably prudent person" would or would not act under the "same or similar circumstances" - The reasonableness of conduct is judged in light of the circumstances apparent at the time of injury and by reference to different characteristics of the actor (ex. age, gender, physical condition, education, knowledge, training, and mental capacity).

Duty Created By Statute

- The defendant must have been within the specified class of persons outlines in the statue - The plaintiff must have been injured in a way that the stature was designed to prevent - The plaintiff must show that the injury would not have occurred if the stature had not been violated

Case: Hiring Practices Breach of Duty - II

- The employer failed to verify the applicant's licensure - A more thorough background check should have revealed this employee's previous criminal conduct

Breach of Duty

- The failure to conform to or the departure from a required obligation owed to a person - The obligation to perform according to a standard of care may encompass either doing or refraining from doing a particular act - Deviation from the recognized standard of care - Failure to adhere to an obligation - Failure to conform to or the departure from a required duty of care owed to a person

Defamation of Character

- The offense of injuring a person's character, fame, or reputation by false and malicious statements. - 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 ~ Libel v. Slander

Objectives of Tort Law

1. Culpability: Find fault for wrongdoing 2. Deterrence: of wrongful acts thru the assessment of monetary damages 3. Preservation: of peace between individuals 4. Compensation: to indemnify injuries person/s

Elements of Negligence

1. Duty of Use Due Care - Standard of care 2. Breach of duty 3. Injury/ actual damages 4. Causation - Proximate Cause - Foreseeability

Negligent and Intentional Torts (Difference)

1. Intent - a present in intentional torts but not in negligent torts 2. Willful Act - intentional torts always involve a willful act - a negligent may not involve any wrongdoing

Categories of Tort Law

1. Negligent 2. Intentional - ex. assault, battery, false imprisonment, and invasion of privacy 3. Strict liability regardless of fault, intentions, or negligence - ex. products liability

Degrees of Negligence

1. Ordinary Negligence 2. Gross Negligence

Tort Law Definition

A tort is a Civil wrong, other than a breach of contract, committed against a person or property (real or personal) for which a court provides a remedy in the form of an action for damages.

Eliminating Causes

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

Assault/Battery

Assault- Definition and Two Conditions (43) Batter - Definition (43)

Products Liability Defenses 1

Assumption of the risk Intervening cause Disclaimers Contributory negligence Comparative fault

False Imprisonment

Definition Desai v. SSM Healthcare (45) Celestine v. US (45) Contagious Disease (Eboli) Davis v. Charter by the Sea (46) Big Town Nursing Home v. Newman (46)

Reasonably Prudent Person

Describes a nonexistent, hypothetical person who is put forward as the community ideal of what would be considered reasonable behavior

Surgery: Sponge and Instrument Count

Dr. Smith owns the local "Outpatient Surgery Center." He instructs employees to count all instruments and surgical sponges following a surgical procedure, prior to closing the surgical sponges following a surgical procedure, prior to closing the surgical site. Annie, and employee, failed to conduct the count following Bill's surgery. Two months later, Bill, suffering from extreme abdominal pain was noted to have several sponges and an instrument in his abdomen. He had developed a massive infection.

Malfeasance

Execution of an unlawful or improper act ex. performing a partial birth abortion in the 3rd trimester when prohibited by law

Nonfeasance

Failure to act when there is a duty to act ex. failing to order diagnostic tests or prescribe medications that should have been ordered or prescribed under the circumstances

Ordinary Negligence

Failure to do under the circumstance what a reasonably prudent person would or would not do

Case: Hot Radiator Foreseeabilty

Ferguson v. Dr. McCarthy's Rest Home (41)

Misfeasance

Improper performance of an act, such as removal of a healthy left kidney instead of the diseased right kidney

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

Negligence

Negligence is a tort. It is the "unintentional" commission or omission of an act that a reasonable prudent person would or would not do under given circumstance.

Malpractice

Negligence or carelessness of a professional person (nurse practitioner, pharmacist, physician, PAs, etc) ex. a surgeon who conducts a surgical procedure on the wrong body part

Case: Accused of an Affair

Nurse Rachey suggest to Dr. Smith that he should leave his wife Sharon because she is having an affair with Dr. Doe. Dr. Smith writes a letter to Mrs. Doe, repeating Rachet's statement.

Case: Hiring Practices Breach of Duty - I

Nurse hired sight unseen over telephone. Applicant falsely stated in an employee application that he was licensed as an LPN. His license was not verified by the employer. He had committed 56 criminal offenses of theft. He assaulted a resident and broke his leg

Battery

Perna v. Pirozzi (44) Wyatt v. Iowas Dept of Human Services (44) Peete v. Blackwell (44)

Foreseeability

Reasonable anticipation from commission or omission of an act Haynes v. Hoffman

Proof of Fraud

Robinson v. Shah (51)

Criminal Negligence

The "reckless disregard" for safety of another. The willful indifference to injury that could follow an act.

Case: Hiring Practices Injury - II

The resident suffered a broken leg

Test for Foreseeability

The 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 ex. Case Hiring practices

Invasion of Privacy

Vernuil v. Poirie