Health Care Law Negligence and Torts

Tort law objectives

The objective of these laws are to preserve peace between individuals by providing a substitute for retaliation. This includes culpability in which one finds fault for wrongdoing, deterrence of future wrong doing, and compensation for the injured party.

Duty of care

This requires an obligation to conform to a recognized standard of care, as well as proof of a relationship between the patient and defendant. ex: AMA --> created Standard of Care; ex: plaintiff must prove existence of legal relationship between patient and defendant, does not need to be formal; ex: duty must arise from special relationship: physician-patient and must exist at time of injury; ex: phone call: voluntary act of assuming care of patient; ex: statute or contract; must accept all patients in ER regardless of insurance

How to analysis any case:

What was the duty? Was there a breach? Causation? Damages?

Respondeat Superior Theory

a legal doctrine where in an employer is legally responsible for the actions or wrongdoings of their employees, if such actions occur under the scope of employment

Injury/Damages

actual damages must be established, if there are no injuries: monetary damages cannot be awarded to the plaintiff; includes physical harm, pain, suffering and loss of income or reputation

commission of an act

administer wrong medication, wrong dosage, wrong person, no patient consent, performing procedure on wrong patient or body part, performing wrong surgical procedure

prima facie case of negligence

all four elements of negligence must be presented for plaintiff to prove a case, plaintiff must prove them

Four elements of negligence

all four must be proven for a plaintiff to recover damages; includes duty of care, breach of duty, causation, injury or damages

negligence

an unintentional act or lack of that a reasonably prudent person would or would not do under the given circumstances, includes commission or omission of an act ex: speeding not under influence

Reasonably Prudent Person

applies to common law; nonexistent hypothetical person who is put forward as the community ideal of what would be considered reasonable behavior

Causation

departure from the standard of care must be the cause of the plaintiffs injury; injury must be foreseeable; requires that there be a reasonable, close and causal connection or relationship between the defendants negligent conduct and the resulting damages; most difficult element

Breach of Duty

deviation from the recognized standard of care; ex: failure to adhere to obligation; ex: failure to follow up; ex: failure to provide a safe environment

What is a negligent act?

duty + breach, also need causation and injury to equal negligence

How to establish causal relationship

eliminate causes other than the defendant's conduct

nonfeasance

failure to act when there is a duty to act as a reasonably prudent person would in similar circumstances; ex: failure to administer medications, failure to order tests or prescribe medications

omission of an act

failure to act; includes failure to give medication, failure to treat, failure to get complete history, failure to order diagnostic tests, failure to assess nutritional needs, failure to follow up on abnormal or critical test results

ordinary negligence

failure to do what a reasonably prudent person would or would not do under the circumstances

misfeasance

improper performance of an act, resulting in injury to another; ex: administering wrong dose of medication, wrong site of surgery

3 basic forms of negligence

malfeasance, misfeasance, nonfeasance

slight negligence

minor deviation of what is expected under the circumstances

Standard of Care

nationwide standard based off what a reasonably prudent person would do or not do acting under similar circumstances; most courts apply. Set of licensed, accredited, government regulations that describe what conduct is expected of an individual in a given situation; professionals held to higher standard

malpractice

negligence or carelessness of a professional person, can lead to criminal negligence; 100,000 deaths per year as result of medical errors

What are the three categories of tort law?

negligence, intentional torts, strict liability-product liability

Burden of proof

on the plaintiff; civil case: scales only need be tipped a small amount to prove case (1 % of evidence); criminal case: scale must be all the way to the ground, need 100% evidence to convict

Foreseeability

part of causation element, the reasonable anticipation that harm or injury is likely to result from a commission or omission of an act

malfeasance

performance of an unlawful or improper act; ex: performing an abortion in the third trimester when this is prohibited by state law)

punitive damages

punish for egregious conduct by awarding damages for pain and suffering, something so outrageous, jail time, criminal

criminal negligence

reckless disregard for the safety of another; willful indifference to an injury that could follow an act (criminal intent) ex: drunk driving

proximate cause

relationship between breach of duty and injury

compensatory damages

seek to restore injured parties financial situation to match the parties financial state before suffering harm

Good Samaritan Laws

someone who renders aid in an emergency to someone who is injured on a voluntary basis; every state has its own laws; some states offer immunity; negligence can occur if injuries are made worse: once you ACT, you have created DUTY to act as a reasonable person

gross negligence

the intentional or wanton omission of required care or performance of an improper act

degrees of negligence

vary by state; includes slight, ordinary, and gross

Test for foreseeability

whether one of ordinary prudence and intelligence should have anticipated the danger to others caused by his or her negligent act, if unaccepted or unanticipated fact comes in to change everything: this breaks causal link