Chapter 6
Duty to Care
1st element of negligence, legal obligation of care imposed on one to safeguard rights of others, this can include duty to hire competent staff
Criminal Law-Purpose
Crime; maintain public order and safety, protect the individual, use punishment as a deterrent to crime, rehabilitate the criminal for return to society
Four elements of Negligence
Duty of Care, Breach of Duty, Injury/Actual Damages, Causation
Tort Law
a wrong, other than a breach of contract, committed against a person or property for which a court provides a remedy, generally in the form of monetary damages
Injury/Actual Damages
actual damages must be established, w/o injury damages cannot be awarded
Standard of Care
actual performance of an individual in a given situation will be measured against what a reasonably prudent person would or would not have done
Commission of an Act
administering wrong medication, wrong dosage of a medication, medication to the wrong patient performing procedure without patient consent, on wrong patient removing wrong body part failing to assess a patient's nutritional needs
Misdemeanor
an offense punishable by less than one year in jail and/or a fine i.e. petty larceny
Crime
any social harm defined and made punishable by law
Subpoena ad testificandum
appearance of a person at a trial or other investigative proceeding to give testimony
Criminal Procedure
arrest, arraignment, indictment, conference (prosecutor, defense attorney), criminal trial
Intentional Torts
assault & battery, false imprisonment, defamation of character, invasion of privacy, infliction of mental distress
Defense of One's Action
assumption of a risk, comparative negligence, contributory negligence, good samaritan laws
Negligence
commission or omission of an act that a reasonably prudent person would or would not do under given circumstances
Infliction of Mental Distress
conduct that is so outrageous that it goes beyond bounds tolerated by decent society
The Court
decides questions of law
Duty created by Statute
defendant must have been within specified class of person outlined in the statute, plaintiff must have been injured in a way statue was designed to prevent, plaintiff must show that injury would not have occurred if the statute had not been violated
Assault
deliberate threat, coupled with apparent ability to do physical harm to another, actual contract not necessary
The Jury
determines questions of fact
Kinds of Evidence
direct, demonstrative, documentary, examination of witnesses, expert witnesses
Kinds of Contracts
employment contracts, exclusive contracts, commercial ethics and non competition agreements
Malfeasance
execution of an unlawful or improper act: performing partial birth abortion when prohibited by law, performing a procedure without having the appropriate credentials
Nonfeasance
failure to act when there is a duty to act: failure to prescribe antibiotics when indicated, failure to respond to emergency call
Omission of an Act
failure to administer medication, to order required diagnostic tests, to follow up on abnormal test results, to perform a "time out" to ensure the correct surgical procedure is being conducted on the correct patient at the correct site
Forseeability
form of causation, tested to see whether a person of ordinary prudence and intelligence should have anticipated danger to others caused by a negligent act
Legal issues
fraud
Fraud
i.e. billing scams by doctors to charge for more expensive medicine but dispense the cheaper medicine. medicare fraud
Defenses against recovery
ignorance of fact and unintentional wrongs, statute of limitations, sovereign immunity
Misfeasance
improper performance of an act: wrong sided surgery, leaving an instrument in the patient's body
Battery
intentional touching of another person in socially impermissible manner without person's consent
Defamation of Character
involves communications to someone other than the person defamed (insulted) that tends to hold that person's reputation up to scorn and ridicule slander, libel
Subpoena
legal order requiring the appearance of a person and/or the presentation of documents to a court or administrative body
Forms of Negligence
malfeasance, misfeasance, nonfeasance
Breach of Duty
must be a deviation from recognized standard of care, must be failure to adhere to an obligation
Causation
must be a reasonable close and casual connection btw the defendant's negligent conduct and resulting damages suffered: hastings case where person can't bleed to death over a 2 hour period without intervention
Malpractice
negligence of a professional person: surgeon who conducts surgery on the wrong body part, nurse who administers wrong medication injuring patient, pharmacist who mislabels a medication and the patient is harmed
Elements of a Contract
offer/communication, consideration, acceptance
Trial Procedures
opening statements: by plaintiff, by defendant burden of proof evidence defense of one's actions defenses against recovery closing statements judge's charge to the jury jury deliberation damages appeals
Pleadings
part of the trial procedure and courtroom, summons and complaint, answer, bill of particulars
Preparation of Witnesses
part of trial procedure, a witness handles questioning at a deposition or trial is often as important as the facts of the case, should be well prepared, prepare including review of all pertinent records
Discovery
part of trial procedure, process of investigating the facts of a case before trial: obtain evidence, isolate and narrow issues, gather knowledge of additional evidence, obtain leads for further evidence
Assault cont.
person attempting to touch another unlawfully must possess apparent present ability to commit battery, person threatened must be aware of or have actual knowledge of an immediate threat of a battery and must fear it
Burden of Proof
plaintiff is required to show that the defendant violated a legal duty; case is dismissed if the evidence does not support the defendant's allegations
Objectives of Tort Law
preservation of peach between individuals, fault-finding for wrongdoing, acts as a deterrence to wrongful acts, indemnify injured persons
Invasion of Privacy
right to: be left alone, be free from unwarranted publicity, be free from exposure to public view, be free from unwarranted intrusions into a one's personal affairs, personal privacy, have records/keep confidential
Felony
serious crime (rape or murder) generally punishable by imprisonment in a state or federal penitentiary for more than one year
Contracts
special kind of agreement, either written or oral, that involves legally binding obligations btw two or more parties
Ethical Issues
truth telling, professional code of ethics
False Imprisonment
unlawful restriction of individual's personal liberty or unlawful restraining or confining an individual
When could Breach of Duty occur?
when a physician fails to respond to his/her on-call emergency room duties, failure to perform an adequate history and physical in the ED
Subpoena duces tecum
written command to bring records documents or other evidence described in the subpoena to a trial or other investigating proceeding