Tort law for medical informatics

proximate cause

1. a cause that is legally sufficient to result in liability; act or omission that is considered in law to result in a consequence. 2. a cause that directly produces an event and without which the event would not have occurred.

types of causations

1. cause-in-fact (actual) - determined by the "but-for" test: but for the action, the result would not have happened 2. proximate cause: and act that results in injury through a natural, direct, uninterrupted consequence and without which the injury would not have happened. It entails an analysis of foreseeability ( was it foreseeable that the defendant's actions would result in the plaintiff's injury?

Defenses to Negligence Claim

1. contributory negligence - all or none 2. comparative negligence - % 3.assumption of the risk - exposed self to risk 4. rescue doctrine - good Samaritan injured and tortfeasor liable 5. sudden emergency - 6. act of God - irresistible disaster

prove defamation

1. defendant made false and defamatory statement 2. statement was not a privileged publication 3.conduct was an act of negligence or contained higher degree of intent 4. actual or prsumed damages resulted.

invasion of privacy

1. duty 2. breach 3. damages

4 elements of negligence

1. duty 2. breach of duty 3. injury 4. causal relationship between breach and injury

Elements of negligence - in order for the plaintiff to recover damages caused by negligence

1. duty to care - obligation to perform a recognized standard of care 2. breach of duty - deviation from the recognized standard of care 3. injury - actual damages must be established 4. causation - departure from the standard of care caused injury

Three steps for statute of limitations

1. id statutory period of limitations 2. determine when statutory period starts 3. determine of an event suspending the statute

categories of negligence

1. nonfeasance - failure to do an act when there is a duty to act as a reasonably prudent person would in similar circumstances - failure to order Dx'ix test, prescribe Rx, 2. Misfeasance - improper performance of an act resulting in injury to another - wrong-sided surgery 3. Malfeasance - intentional conduct that is intended to cause damage - performance of an unlawful act - performing an abortion in the third trimester when prohibited by state law.

basic objectives of tort law

1. preservation of peace between individuals (trespass) 2. to find fault of wrongdoing (culpability) trespass on case 3. compensation to the injured person

Proving negligence

1. relationship - defendant owed the plaintiff a duty of care 2. defendant breached that duty of care 3. plaintiff suffered an injury as result of breach 4. a causal connection exits between breach and injury a. cause-in-fact - - but-for test b. proximate cause - analysis of foreseeability

defense against defamation

1. statement was true 2. defendant may use the defense of privilege

punitive damages

can be awarded to the plaintiff for pain and suffering caused by conduct that would be considered egregious ( really bad)

standard of care

care provided in an acceptable manner

Comparative negligence

causes the plaintiff's recovery to be reduced by some amount based on his or her percentage of the negligence

tort

civil wrong for which the law will provide a remedy in the form of a lawsuit to recover damages

false imprisonment

confinement against their will absence of reasonable means of escape no legal authority to confine another eg; hospitalized against their will

tortfeasor

defendant

assumption of the risk

defense that bars a plaintiff from recovering on his or her negligence claim if the defendant proves the plaintiff: 1. had actual knowledge of a danger 2. understood and appreciated the ricks asso with danger 3. voluntarily exposed themselves to the risk

Immunity from liability

doesn't deny tort but denies liability, for special grps due to their status or position: governent, public officers, charities, spouses

Negligence for improper disclosure

duty breach injury breach of duty must be a legal and proximate cause of the injury

Corporate negligence (primary liability)

duty: safe facilities, competent professionals, oversee personnel, quality of care for pts negligence action: 1. the defendant owed the plaintiff a duty 2. the defendant breached that duty 3. plaintiff suffered an injury 4. causal connection exits between the breach of duty and the plaintiff's injury.

Omission of an act

failing to do thorough H/P failing to assess/reassess pt nutritional needs failing to adm. Rx failing to order Dx'ic tests failing to follow up on abn test results

Negligence - unintentional (2nd type of tort)

failure to act in a way that a reasonably prudent person would act under the same circumstances causing injury. conduct which falls below standards established for protection of others against unreasonable risk of harm.

begligence

failure to act in a way that a reasonably prudent person would act under the same circumstances thus causing harm or injury to another

breach of duty

failure to conform to or the departure from a required duty of care owed to a person

nonfeasance - type of negligence

failure to do an act; not do good

Defamation

false communication about a person to someone else that harms the first person's reputation. defendant made a false statement statement not privileged publication = to 3rd person negligence or intent damages resulted Not liable if statement was true defense of privilege

malpractice insurance 'crisis'

junk/frivolous l/s lack of available/ affordable malpractice ins. fewer insurers down-turn in economy affects insurer's investments

Respondeat Superior (secondary liability)vicarious

let the master answer H is R for the actions of its employee provided that these individuals were acting within the scope of their employment or at the H's discretion at the time they conducted the tortuous activity in question. Therefore, the H will be liable for the torts of independent contractors

Strict Liability (3rd type of tort)

liability without fault - a person is responsible for the damage and loss caused by their acts/omissions regardless of fault. Abnormally dangerous activities/product liabilities cases * plaintiff sustained damages * defendant engaged in a product in question * product supplies was defective *defect caused damages

evidence of standards of care

may be found in gov agencies and standards established by private organizations. JCAHO, state license. courts have been moving away from reliance on community standards and have applied industry or national standards because standards of care should not vary with the locale where care i given. Also many communities only have one hospital.

Infliction of emotional distress

mental distress includes mental suffering from painful emotions such as grief, public humiliation, despair, shame, wounded pride. Can be intentional/negligent

malpractice - type of negligence

misconduct of a professional person

malpractice

misconduct, negligence or carelessness of a professional person. eg; misdiagnosis, mistreatment, delayed Dx, failure to Dx, surg errors, medical errors

causation (4)

must be established to show that a particular breach of duty caused the injury. Must also prove Proximate cause - cause that directly produces an event and without which the event would not have occurred.

injury (3)

must be established to show that a person was harmed

One critical difference between tort and contract law

negligence does not factor into the analysis and resolution of contract disputes

rescue doctrine

neither contributory negligence nor assumption of risk is charged to him who comes to the rescue of others in peril without their fault, unless the act of the rescuer is manifestly rash and reckless to a man of ordinary prudent acting in an emergency.

breach of contract

nonperformance

slander

oral defamation

Degrees of negligence

ordinary neg. - failure to exercise ordinary care gross neg. - excessive neg. that implies extreme departure from the ordinary standard of care

injury

physical harm, pain, mental suffering, invasion of right and privacy, loss of income or reputation

Res Ipsa Loquitur (negligence)

plaintiff has the burden of proof except where the facts or circumstances raise an presumption of negligence and then the defendant has the burden of proof. Reason: some events do not occur in the absence of negligence. The Thing Speaks for Itself. (beer keg falls off platform)

tolling and reason

postponing, suspending, extending a statutory period reasons: inability to discover the injury death of the injured individual disability of the injured individual wrongdoing by the individual or entity causing the injury

collateral source payments

pymts a plaintiff in a tort case receives from a source other than the defendant.

criminal negligence

reckless disregard for the safety of another willful indifference to harm that could result from an act

breach of confidentiality

relationship between patient and provider duty breach damages

invasion of privacy -principle of protecting privacy

releasing info from a pt m/r to improper sources or committing unwarranted intrusions into a pt's personal affairs Requires: 1. duty 2. breach of that duty 3. damages from the breach Exclusion: communicable diseased, gunshot wounds, child abuse

duty (1)

requires that a person is required to conform to identified standard of care

privacy

right to be left alone

tort

right to recover damages for a loss caused by tortfeasor (defendant)

compensatory damages

seek to restore the injured party's financial situation to match the party's financial state before suffering harm

privilege

special relationship recognized by the law that permits certain conduct and would be prohibited under other circumstances. eg parent/child

foreseeability

the reasonable anticipation that harm or injury is likely to result from an act or an omission to act. The test for foreseeability is whether a person of ordinary prudnec and intelligence should have anticipated the danger to others caused by a negligent act ( pt denies having allergies to certain Rx if given and has a rx. the pt is contributorily negligent)

Statutes of limitation - purpose

to allow injured person a reasonable time to bring action to allow claims to be resolved while evidence is reasonably available and fresh

civil objective criminal objective

to recover damages for punishment

types of torts: history

trespass - direct/intentional interference with a person's protected interest trespass the case - for finding a remedy for conduct not nec. intentional

corporate negligence (primary liability)

under the corporate negligence doctrine, a H owes pt 1. reasonable care to maintain safe facitlities/equip 2. select/retain competent medical professionals 3. oversee persons who practice med in H 4. adopt/enforce rules/policies to ensure quality-o-care

Criminal liability in h/c

violation of the HIPAA Privacy Rule has criminal penalties not more than $50,000/ not more than 1 year or both false pretense: not more than $100,000/not more than 5 or both with intent to sell/transfer/use for gain/harm: not more than $250,000, not more than 10 years or both

Standard of Care

what an individual is expected to do or not to do in a particular situation. The exercise of reasonable care by h/c professionals with similar training and experience in the same or similar communities - community standards. National level of standard of care is stricter/more rigorous than a community standard in a small one.

criminal negligence- type of negligence

willful indifference to a harm

libel

written defamation

Commission of an act

wrong Rx wrong dose wrong pt surg Px without consent surg Px on wrong pt wrong surg Px

3 groups of tort

1) wrong involving the individual right 2) wrong involving rights to personal property 3) wrong involving rights to real property

Strict Liability

A person is R for the damage and loss caused by their acts/omissions regardless of fault - product liability. eg blasting in a city Elements of strict liable 1. injury 2. defendant engaged in manufacturing, assembling, selling, leasing, distributing product in question 3. product was supplies by the defendant in a defective condition that rendered it unreasonably dangerous 4. the defective condition proximately caused the plaintiff's damages Therefore, the manufacturer of a product is not liable for injuries suffered by a pt if they are result of negligent use by the user.

Civil causes in h/c

Based on: negligence or intentional torts (battery, assault, infliction of emotional distress, false imprisonment)

Intentional torts (1st type of tort)

Battery - intentional non-consensual contact Assault - conduct not intended to cause harm. conduct that causes apprehension of harmful contact. no actual contact. Protection from mental disturbance. False Imprisonment - hospitalized against will Intentional infliction of emotional distress - acting with selfish disregard.

Res Ipsa Loquitur

The thing speaks for itself. usually the plaintiff has the burden of proof and must prove all elements of the case. Res Ipsa Loquitur is exception to this rule - surg team leave instrument in pt. Elements of res ipsa loquitur: 1. injury of a kind which ordinarily does not occur in the absence of someone's negligence 2. injury caused by an agency or instrumentality within the exclusive control of the defendant 3. injury must not have been due to any voluntary action or contribution on the part of the plaintiff.

intentional wrong - eg

assault, battery, false imprisonment, defamation of character, fraud, invasion of privacy, infliction of emotional distress

breach of duty (2)

a deviation from standard of care

defamation of character

a false communication to someone else that harms the first person's reputation - scorn/ridicule must be communicated to a third person; not grounds if only told to person libel - written form; signs,photo, letters, cartoons slander - oral; to form prejudices against a person in the eyes of third persons.

Breach of confidentiality - Fiduciary Duty- special relationships

a fiduciary duty is based on a special relationship of trust, confidence or R in certain obligations. Phy. has a fiduciary duty to not disclose the pt's m/i Required: 1. duty 2. breach 3. damages

Respondeat Superior (secondary liability)

a hospital is liable for the torts of its employees Let the master answer. vicarious liability

reasonably prudent person

a hypothetical person that a community believes exhibits ideal behavior in a particular situation and can differ from one situation to another

duty to care

a legal obligation of care, performance or observance imposed on one to safeguard the rights of others

causation

a reasonable, close and causal connection or relationship between the defendant's negligent conduct and the resulting damages suffered by the plaintiff

joint and several liability

allows each defendant in a legal action to be help responsible for the entire amount of damages that a plaintiff is awarded regardless of the defendant's degree of fault. Deep pocket rule - sue multiple defendants Replaced by tort reform measures with proportionate liability = a tortfeasor is only liable for its share or proportion of the injury it caused.

discovery rule

if the nature of an injury is inherently undiscoverable, a person exercising reasonable diligence will not be barred by the statute of limitations from bringing a lawsuit. (sponge left in from a surgery not discovered for years)

Health Insurance Portability and Accountablilty Act HIPAA, state, federal laws

impose liability for improper disclosure of health information.

misfeasance - type of negligence

improper performance of an act; create risk

main diff between intentional and negligent wrongs

intent negligent wrong - due to failure to act when there is a duty intentional wrong - willful act, violates another's interest

battery

intentional and nonconsensual contact with the plaintiff eg spitting, forcibly removing. The time, place and circumstances of an act determine if the touching was impermissible

malfeasance - type of negligence

intentional conduct intended to cause injury

emotional distress

intentional or reckless act extreme and outrageous conduct emotional distress must be severe eg; excessive force used to restrain a pt may produce liability for false imprisonment and battery

assault

intentional tort of assault involves conduct that causes apprehension of a harmful or offensive contact instead of actual contact; no actual contact is necessary. infringement on mental security eg waving a gun