Chapter 6 - Professional Liability and Medical Malpractice

Promise to Cure:

- A promise to cure a patient is considered under contract law - Use caution when speaking to patients - Comment such as "I'm sure you'll be fine" could be taken as a verbal contract

Illegal Sale of Drugs:

- Always be alert for indications of drug abuse among co-workers--easy to access in healthcare setting - Necessary to get them help and protect patients and the reputation of the facility

Two types of liability insurance:

- Claims made Insurance - Occurrence Insurance

Contributory Negligence refers to:

- Conduct on the part of the plaintiff that is a contributing cause of an injury - Complete bar to recovery of damages - Means plaintiff will receive no monetary damages.

Both actions and inactions (omissions) can be considered negligence. Example:

- Failure to provide clear instructions regarding treatment or medication use is an omission - Providing incorrect info is considered negligence

Malpractice Prevention:

- General Guidelines - Safety - Communication - Documentation

Ignorance of Facts and Unintentional Wrongs:

- Healthcare professional should understand what is right and wrong under law - Arguing that a negligent act is unintentional is not a defense

In order for Res lpsa Loquitur to be used, three conditions must be met:

- Injury could not have occurred without negligent act -Defendant had direct control over cause of injury - Patient did not and could not contribute to the injury

Physical Conditions of the Premises:

- Institutions may be liable when regulatory standards have been violated Ex: Broken steps, malfunctioning elevators and doors, and defective carpets - Every staff member must take responsibility for reporting and correcting defects that could cause injury

Common high risk behaviors that should be avoided:

- Medication errors - Failure to monitor patient - Failure to follow proper code - Lack of communication: abnormal test results - Not knowledgeable to determine patient's condition

Denial Defense:

- Most common defense - Plaintiff must prove defendant did wrongful or negligent act - Jury must determine if defendant caused injury - May bring in expert witness

Assumption For Risk:

- Prevents plaintiff from recovering damages if plaintiff voluntarily accepts a risk associated with the activity - Plaintiff must know and understand risk involved, and choice to accept risk must be voluntary - Should have signature to document that patient authorizes procedure, understands risks, and consents to treatment

Malpractice Acts:

- Professional Misconduct - Improper discharge of professional duties - Failure to meet professional standards of care that result in harm to another person

Role of Supervisor:

- Responsible for own actions - Delegation - Always protect your license

Statute of Limitations:

- Set time period for injured party to file lawsuit - Usually 1 to 3 years - Exception is rule of discovery - Statute of limitation does not begin to "run" until injury is discovered - Will not begin to "run" if fraud (deliberate concealment of facts from patient" is involved

Comparative Negligence

- Similar to contributory negligence - Patients own negligence helped cause injury - Not a complete bar to recovery of damages - Allows plaintiff to recover damages based on the amount of defendant's fault

Borrowed Servant

- Special applicant of respondeat superior - Employer lends an employee to someone else - Employee remains "servant" of employer, but employer is not liable for any negligence caused by employee while in service of temporary employer

Res Judicata means

- The thing has been decided or a matter decided by judgment - No double jeopardy

Office of Inspector General focuses on:

1. Additional costs to federal healthcare programs such as Medicare and Medicaid 2. Quality of patient care 3. Access to care 4. Freedom of choice 5. Competition 6. Healthcare providers' abuse of professional judgment

Res Ipsa Loquitur

1. The injury could not have occurred without negligence. 2. The defendant had total and direct control over the cause of injury, and the duty was within the scope of the duty owed to the patient or injured party. 3. The patient did not, and could not, contribute to the cause of the injury.

In some states, attorney can receive as much as ____ of payment, plus expense

33 1/3 percent

Comparative Negligence:

A defense, similar to contributory negligence, that the plaintiffs own negligence helped cause the injury; not a complete bar to recovery of damages but only damages based on the amount of the plaintiff's fault

Nominal Damages:

A slight or token payment awarded by the court

Borrowed Servant Doctrine:

A special application of respondeat superior in which an employer lends and employee to someone else

Rider:

Additional component to an insurance policy

Denial, assumption of risk, contributory negligence, comparative negligence, borrowed servant, statute of limitations and red judicata are examples of:

Affirmative Defense

Occurrence insurance:

Also called claims incurred insurance, liability insurance that covers that insured party for all injuries and incidents that occurred while the policy was in effect (policy year) regardless of when they are reported to the insurer or when the claim is made

Punitive Damages:

Also called exemplary damages, monetary award by a court to a person who has been harmed in an especially malicious and willful way; meant to punish the offender

Compensatory Damages:

An amount of money awarded by the court to make up for loss of income or emotional pain and suffering

Damages:

Any injuries caused by the defendant usually a monetary award is given as compensation

Court awarded payment to make up for loss of income or emotional pain and suffering:

Compensatory Damages

Contributory Negligence:

Conduct on the part of the plaintiff that is a contributing cause of injuries; a complete bar to recovery of damages

Injuries caused by the defendant:

Damages

Defendant demonstrates more convincing evidence. The case would rule in favor for:

Defendant

Neglect of Duty - Physicians failure to act as an ordinary and prudent physician would act in a similar circumstance:

Dereliction - Patient would have to prove that physicians performance or treatment did not comply with acceptable standards of care Ex. Physicians doesn't properly inform patient about all risks. Outcome patient did not anticapte

Continuous sequence of events unbroken by any intervening cause, that produces an injury and without which injury would not have occurred:

Direct or Proximate Cause - Prove physicians or nurses dereliction of duty was direct cause for the injury that resulted - Injury was proximately or closely related to physicians negligence.

Feasance:

Doing an act or performing a duty

Responsibility established by the physician patient relationship:

Duty - Takes place when there is an obligation established between the patient and physician. Ex. Appointment in office and then follow up.

Four D's of Negligence:

Duty, Dereliction, Direct or Proximate Cause, Damages - Must show all Four for Judgment

A promise to cure a patient with a certain procedure or form of treatment is consider under civil law rather than contract law. True or False

False

The deliberate misrepresentation or concealment of facts from another person for unlawful or unfair gain

Fraud Ex: illegal billing for services not rendered, kickbacks for referrals or Medicare and Medicaid patients, dishonesty when conducting research, embezzlement, and illegal sale of drugs

Misfeasance:

The improper performance of an otherwise proper or lawful act

Proximate:

The injury was closely (proximately) related to the defendant's negligence

Law of Agency:

The legal relationship formed between two people when one person agrees to perform work for another person

Res judicata:

The thing has been decided

Res ipsa loquitur:

The thing speaks for itself

A jury would have to determine if a reasonable professional would have done the same action. True or False

True

A rider is an addition to an insurance policy that may cover negligence on the part of employees. True or False

True

All healthcare workers are responsible for their actions even though the doctrine of respondeat superior states that an employer is also liable for injury to a patient. True or False

True

Almost all states deny tort immunity for charitable organizations. True or False

True

Every mistake or error is not malpractice. True or False

True

Healthcare professionals need to be on constant alert for practices that could result in injury to the patient. True or False

True

If patient does not receive injury, then no negligence case. True or False

True

In the largest sense of the term, everyone is legally responsible or liable for his or her own actions. True or False

True

It is easier to prevent negligence than it is to defend it in court. True or False

True

Malpractice insurance can be very expensive. True or False

True

Some states have applied a cap on amount of money that can be awarded for a medical malpractice case. True or False

True

The court will consider amount of physical disability, loss of earnings to date, and any future loss of earnings to determine the amount of monetary award for Compensatory Damages. True or False

True

The unintentional tort of negligence most often cause of lawsuits for healthcare professionals. True or False

True

Some states, no cap on amount that can be awarded. Patient may receive millions True or False

True - These large payments cause physicians malpractice insurance to increase to point where can't afford and have to leave practice

Negligence:

Unintentional action that occurs when a person either performs or fails to perform an action that a "reasonable person" would or would not have committed in a similar situation

Mediation:

Using the opinion of a third party to resolve a civil dispute in a nonbinding decision

Both sides equally demonstrate evidence. The case would rule in favor for:

Usually found in favor of defendant

Does the doctrine of let the master answer apply to a pharmacist who is dispensing medication ordered by a physician? a. No b. Yes c. Sometimes d. Only if the drug is experimental

a. No

The two basic types of malpractice insurance are: a. claims-made insurance and occurrence insurance b. major and minor c. with injury or damage and without injury or damage d. professional and nonprofessional

a. claims-made insurance and occurrence insurance.

An insurance company may "settle" a case, which means that the company a. comes to an agreement b. is admitting guilt c. is dismissing the case with no action

a. comes to an agreement

If treatment continues after is has been refused by the patient, the healthcare provider could be liable for: a. assault b. battery c. nothing d. detaining the patient

b. battery

If a patient's death has been caused by the physician's negligence, then the patient's family and heirs: a. can sue for murder b. can sue for wrongful death c. cannot sue for five years d. can sue for pain and suffering

b. can sure for wrongful death

Which is not one of the four D's of negligence: a. duty b. denial c. dereliction of duty d. damages

b. denial

Is a hospital liable for injury if someone falls on a wet floor despite clearly posted caution a. yes b. no c. yes, but only if the individuals is handicapped

b. no

Comparative negligence is: a. unlike contributory negligence b. very similar to contributory negligence in that the plaintiff's own negligence helped cause the injury c. means an employer lends an employee to someone else d. Is a complete bar to recovery

b. very similar to contributory negligence in that the plaintiff's own negligence helped caused the injury

Ignorance of the law: a. means you are not responsible b. is a valid argument in court c. is not a defense d. is a valid argument only before a case goes to court

c. is not a defense

A person with special knowledge or experience who is allowed to testify in court about pointed of knowledge relating to facts in the case is called: a. a plaintiff b. a witness c. a rider d. an expert witness

d. an expert witness

An affirmative defense allows the defendant (usually physician or hospital) to:

present evidence that the patients condition was the result of factors other than negligence

Damages can include:

• Permanent physical disability • Permanent mental disability • Loss of enjoyment of life • Personal injuries • Past and future loss of earnings • Medical and hospital expenses • Pain and suffering

Preponderance of Evidence:

One side must demonstrate a greater weight of evidence than other side

Defensive Medicine:

Ordering more test and procedures than are necessary in order to protect oneself from a lawsuit

Malfeasance:

Performing an illegal act

Civil Liability Cases:

Physicians and other medical professionals may be sued under a variety of legal theories

Burden of proof remains with the:

Plaintiff

Malpractice:

Professional misconduct or demonstration of an unreasonable lack of skill with the result of injury, loss, or damage to the patient

Monetary award by court to person harmed in malicious and willful way. Not always related to actual cost of injury or harm suffered. Meant to punish offender and warning to others not to engage in malicious behavior. Ex: physical therapy to regain strength due to injury

Punitive or Exemplary Damages

The thing has spoken for itself. Applies to law of negligence. Neglect so obvious doesn't need further explanation. Expert usually not needed:

Res Ipsa Loquitur - In pretrial, judge determines if trial can be tried on basis of res ipsa

Federal Rules of Evidence:

Rules that govern the admissibility of evidence into federal court

The OIG (Office of Inspector General) reports problems with healthcare programs to the ______ and ______, and makes recommendations on how to correct them

Secretary of State and Congress

Physicians and most licensed professionals such as nurses and PA's are held to a national standard of care. How is this determined?

Set by observing what a competent peer in another location would do in a similar circumstance--standard--minimum acceptable

Settlement:

The act of determining the outcome of a case outside a courtroom; settling a case is not an indication of legal wrong doing

Direct Cause:

The continuous sequence of events, unbroken by any intervening cause, that produced an injury and without which the jury would not have occured

Fraud:

The deliberate concealment of the facts from another person for unlawful or unfair gain

Nonfeasance:

The failure to perform an action when it is necessary

Wrongful death statutes:

If patient's death was caused by physician's negligence, deceased person's dependents and heirs may sue for wrongful death - No federal malpractice laws - Many states have cap on wrongful death cases

Claims Made Insurance Covers:

Insured party for only the claims made during the time period the policy is in effect or policy year

Liable:

Legal responsibility for one's own actions

Claims-Made Insurance:

Liability insurance that covers that insured party for only the claims made during the time period the policy is in effect (or policy year)

Performing a wrong and illegal act:

Malfeasance Example - Nurse or MA prescribe medical treatment or medication

Professional liability malpractice is classified 3 ways:

Malfeasance Misfeasance Nonfeasance

Professional misconduct or demonstration of an unreasonable lack of skill with the result of injury, loss, or damage to the patient:

Malpractice

Medical malpractice involves more than just poor outcome. Example:

May reflect in excusable lapse in judgment that results in serious injury or death

Improperly performing an otherwise proper or lawful act:

Misfeasance Example: Poor technique by nurse or MA. Suffers nerve damage.

Dereliction:

Neglect, as in neglect of duty

An unintentional action, occurs when a person either performs or fails to perform an action that a reasonable professional person would or would not have performed in similar situation:

Negligence

Slight or token payment awarded by the court to patient to demonstrate no physical harm done but patient's legal right were violated. Could be as little as a dollar

Nominal Damages - Most states require actual damages in form of compensatory payments rather than just nominal damages or payments

Failure to perform a necessary action:

Nonfeasance Example: Nurse or MA does not administer CPR in office to patient who collapses

Duty:

Obligation or responsibility

Covers the injured party for all injuries and incidents that occurred while policy was in effect regardless of when claim is reported to the insurer or the claim was made

Occurrence Insurance

This office was created to protect the programs under the Department of Health and Human Services (HHS), such as Medicare and Medicaid, from fraudulent activities.

Office of Inspector General

One of the major players in the war against healthcare fraud, such as false insurance claims is the:

Office of the Inspector General

Protects federal programs from fraudulent activities. Examples: Medicare and Medicaid

Office of the Inspector General