Legal aspects of Health

Respondeat Superior

"Let the master answer" is a legal doctrine holding employers liable, in certain cases, for the wrongful acts of their agents.

Res Ipsa Loquitur

"The thing speaks for itself." A doctrine of law applicable to cases in which the defendant had exclusive control over the thing that caused the harm and where the harm ordinarily could not have occurred without negligent conduct.

For liability to be imputed to the employer

1- a master servant relationship must exist between the employer and the employee. 2-the wrongful act of the employee must have occurred within the scope of his or her employment.

To prove Fraud

1-An unture statement known to be untrue by the party making it made with the intent to deceive. 2-justifiable reliance by the victim on the thruth of the statement. 3- damages as a result of that reliance.

Tort

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.

Elements of Negligence - injury

Actual damages must be established. If there are no injuries, no monetary damages are due to the plaintiff

Abuse

Can take many forms: physical, psychological, medical, and financial. Abuse is not always easy to identify because injuries often can be attributed to other causes.

Assault

Deliberate threat, coupled with thte apparent present ability to do physcial harm to another. No actual contact or damage is necessary.

Ordinary Negligence

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

Negligent Tort

Intent is present in intentional but not in negligent wrongs. Negligent wrong may simply be the failure to act when there is a legal duty to act, an intentional wrong always involves a willful act that violates another's interests.

Gross Negligence

Intentional or wanton omission of care that will be proper to provide, or the doing of that which will be improper to do

Negligence

Is a tort, A civil or personal wrong. It is the unintentional commission or omission of an act that a reasonably prudent person would or would not do under given circumstances

Products Liability

Liability of a manufacturer, seller, or supplier of chattels to a buyer, or other third party for injuries sustained because of a defect in a product. An injured party may proceed with a lawsuit against a seller, manufacturer, or supplier on three legal theories: Negligence, breach of warranty, and strict liability.

Three forms of negligence

Malfeasence: performance of an unlawful or improper act Misfeasance: improper performance of an act, resulting in injury to another Nonfeasance: failure to act when there is a duty to act as a reasonably prudent person would under similar circumstances.

Abuse of nursing facility residents

Omnibus Budget Reconciliation Act of 1989. The act provides that a "resident has the right to be free from verbal, sexual, physical, or mental abuse, corporal punishment, and involuntary seclusion".

Intentional Tort

One that is committed deliberately. The defendant intended the harmful consequences of his or her behavior. Intentional wrongs include assault and battery, false imprisonment, defamation of character, fraud, invasion of privacy and infliction of emotional distress. For a tort to be considered intentional, the act must be committed intentionally, and the wrongdoer must realize to a substantial certainty that harm would result. .

Degrees of negligence

Ordinary Negligence and Gross Negligence

Sings of abuse

Physician's orders fro restraints, time limited orders, number of patients that are physically restrained, type of restraints being use, how often restrained patients are observed by the staff, frequency of overmedication, signs of physical and mental abuse, any signs of harassment, humiliation, or threats from staff or patients, evidence of patient neglect or patients left in urine or feces without cleaning.

Elements of Negligence - Causation

The departure from the standard of care must be the cause of the plaintiff's injury. The injury must be foreseeable. Foreseeability involves guarding against that which is probably and likely to happen.

Patient Abuse

The mistreatment or neglect of individuals who are under the care of a health care organization. Not limited to an institutional setting and may occur in an individual's home as well as in an institution

Elements of Negligence - breach of duty

There must be a deviation from the recognize standard of care

Elements of Negligence - Duty to care

There must be an obligation to conform to a recognized standard of care. Existence of a legal relatioship between plaintiff and the defendant.

Intervening cause

Third party acts supersedes that of the defendants. As long as the defendant did not foresee the third party's involvement.

Fraud

Willful & intentional misrepresentation that could cause harm or loss to person or property.

rationale for imposing liability

employer's right to control the physical acts of its employees. it is not necessary that employer actually exercise control only that it possesses the right, power, or authority to do so.

Battery

intentional touching of another's person in a socially impermissible manner, without that person's consent.

Fraud

it includes any cunning, deception, or artifice used in violation of legal or equitable duty to circumvent, cheat, or deceive another.