Test 1 (pt.1)
Invasion of Privacy
- Right to privacy is implied in the Constitution & includes the right to be left alone, be free from unwarranted publicity, be free from exposure to public view, be free from unwarranted intrusions in to one's personal affairs, personal privacy, and have records kept confidential.
Fraud
- Willful and intentional misrepresentation that could cause harm or loss to a person or property (knowingly concealing from patient the presence of surgical sponges in his abdomen after surgery) 1. Includes any cunning, deception or artifice used, in violation of legal or equitable duty, to circumvent, cheat or deceive another 2. Proof of fraud a. Misrepresentation by defendant b. Knowledge of falsity c. Intent to induce reliance on misrepresentation d. Justifiable reliance by plaintiff e. Damage to plaintiff 3. Health care fraud examples include billing for trade name drugs & issuing generics, double billing for office visits, billing for services not rendered, & accepting referral fees
Duty of Duty to Care
- obligation to conform to a recognized standard of care A. provide health law examples of duty to care, including emergencies, hiring decisions, standard of care, statutory duty, medical ethics, local versus national standard, higher standard for special skills, & expert testimony to establish the standard. B. Standard of Care, 1. Describes the conduct expected of an individual in a given situation 2. Describes how a reasonably prudent person would or would not act under similar circumstances 3. Measurement for properly assessing the conduct required of a person C. Reasonably Prudent Person - hypothetical person who represents a community ideal of what would be considered reasonable behavior D. Similar Circumstances 1. Circumstances when the injury occurred 2. Circumstances of the alleged wrongdoer(s) at the time of injury - age, physical condition, education and training, licenses, mental capacity, etc. E. Determining Standard of Care 1. Legislative enactment or administrative regulation 2. Adopted by the court from number one above 3. Judicial decision 4. Applied to the facts of a case by a judge or jury if no such enactment, regulation or decision exists F. Community v. National Standard, p.48 - courts have been moving away from reliance on a community standard (our way) and have applied an industry or national standard (national basis)
Breach of Warranty
1. A warranty is a particular type of guarantee concerning goods or services provided by a seller to a buyer 2. Types of Warranty a. Express Warranty includes specific promises or affirmations made by seller or buyer (Crocker v. Winthrop Laboratories, p.72- drug manufacturer represents its product to be free from addiction & it is not) b. Implied Warranty exists by operation of the law as a matter of "public policy" for protection of the public (Jacob E. Decker & Sons v. Capps, p.72 - consumers have a right to assume that food is not contaminated)
Assault and Battery
1. Assault - deliberate threat, coupled with the apparent ability to do physical harm to another (contact is not necessary) a. Person attempting to touch another unlawfully must possess apparent present ability to commit battery b. Person threatened must be aware of or have actual knowledge of an immediate threat of a battery and must fear it 2. Battery - Intentional touching of another's person in a socially impermissible manner without person's consent 3. Failure to obtain consent prior to surgery a. Administering blood against a patient's express wishes b. Physically restraining one who refuses to eat
Infliction of Mental Distress
1. Conduct so outrageous that it goes beyond bounds tolerated by decent society 2. Mental distress includes mental suffering from painful emotions such as grief, public humiliation, despair, shame, & wounded pride 3. Cases a. Johnson v. Women's Hospital, p.69 - mother of premature infant that died was shown a freezer jar by a hospital employee that contained the infant b. Greer v. Medders, p.70 - covering physician's abusive language to a patient & his wife willfully caused emotional upset
Strict Liability
1. Refers to responsibility without fault and makes possible an award of damages without any proof of manufacturer negligence 2. Elements required to establish Strict Liability are the product was manufactured by defendant, product defective at the time it left the hands of the manufacturer or seller, plaintiff was injured by the product, & the defective product was the proximate cause of injury.
Products Liability & Res Ispa Loquitur
1. Res Ipsa Loquitur, means "the thing speaks for itself" 2. Plaintiff must show that the product did not perform in the way intended, was not tampered with by buyer or 3rd parties, & the defect existed at time it left defendant
Tort Law
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
Hospital Standardization
A. American College of Surgeons, founded in 1913, began the hospital standardization movement in 1918 - only 89 hospitals in the United States and Canada met requirements B. Joint Commission on Accreditation of Hospitals (1952) - today the Joint Commission on Accreditation of Healthcare Organization
Injury
A. Actual damages must be established B. No injuries means no damages are due
Commission of an Act
A. Administering the wrong medication B. Administering the wrong dosage of a medication C. Administering medication to the wrong patient D. Performing a surgical procedure without patient consent E. Performing a surgical procedure on the wrong patient F. Performing the wrong surgical procedure
Department of Health & Human Services
A. Administration on Aging B. Centers for Medicare and Medicaid Services - Medicare Parts A through D C. Public Health Service - NIH, CDC, FDA, IHS
Hospitals in the 18th century
A. Building of hospitals partially revived - 115 hospitals in England by 1732 B. Royal College of Physicians established a dispensary where medical advice was free and medications were sold to the needy at cost
Sources of Law
A. Common Law - derived from judicial decisions B. Statutory Law - written laws emanating from federal and state legislatures C. Administrative Law - public law, rules and regulation issued by administrative agencies to direct the enacted laws of the federal and state governments
Breach of Duty
A. Deviation from the recognized standard of care B. Failure to adhere to an obligation C. Failure to conform to or the departure from a required duty of care owed to a person D. Breach of duty examples - a physician fails to respond to his/her on call duties; an employer fails to adequately conduct a pre- employment check (licensure, background check)
20th Century Inventions
A. Einthoven invents electro-cardiograph B. Radium used to treat malignancies C. Increased use of study of tissue
Omission of an Act
A. Failing to conduct a thorough history and physical examination B. Failing to assess and reassess a patient's nutritional needs C. Failing to administer medications D. Failing to order diagnostic tests E. Failing to follow- up on abnormal test results
Common Law in England
A. Few written laws B. Law develops from court decisions C. Became known as 'common law' D. Subsequent cases based on prior decisions
19th Century Hospitals - Period of Ignorance
A. Increase in the surgical procedures B. Hospital wards filled with discharging wounds making the atmosphere offensive enough to use perfume C. Nurses used snuff to make conditions tolerable D. Surgeons wore their operating coats for months without washing them E. Same bed linens served several patients F. Mortality from surgical operations was 90 - 100 percent
Latter Half of 20th Century
A. Increased hospital competition B. Advances in medical technology like MRI, CT & Pet scanners C. Increase in for-profit hospital chains D. Competing delivery systems E. Many new medications
Late 19th Century Renaissance
A. Health care worker Florence Nightingale made modifications in nursing & founded school of nursing in 1860 in England B. Crawford Long use ether as an anesthetic to remove tumors C. W.T.G. Morgan, a dentist, developed sulfuric ether and arranged for the first hospital operation under anesthesia at Massachusetts General Hospital in 1846 D. American Medical Association (AMA) was founded in 1847 E. Ignatz Philipp Semmelweiss of Vienna declared at Europe's largest teaching obstetrical department that the alarming number of deaths from puerperal fever was due to infections transmitted by students who came directly from the dissecting room to take care of maternity patients F. Continuing problem of hospital acquired infections results in 99,000 patient deaths per year in America - contributing factors include more severely ill hospitalized patients who are at greater risk & the need for enhanced infection control programs G. Louis Pasteur's originated modern bacteriology and clinical laboratories & vaccinated against anthrax H. Study of cytology in the middle of the 19th century influenced the development of modern hospital clinical laboratory I. Changing hospital structure- buildings of the Civil War days continued with as many as 25 to 50 beds in a ward J. Roosevelt Hospital built on lines of a pavilion in New York City in 1871. 1. Had small wards 2. Set the style of new type of architecture K. Wilhelm Konrad Roentgen's discovered x-ray in 1895 L. Inventions also included thermometer, laryngoscope, ophthalmoscope, and numerous other aids for accurate diagnosis
Hospitals of the Renaissance
A. Hospital building continued B. New drugs C. Anatomy a recognized study, dissections performed, surgery more scientific D. New writings E. Microscope - Van Leeuwenhook F. Conflict between Henry VIII & Catholic Church in 16th century 1. Catholic hospitals required to be turned over to secular use or be destroyed 2. Hospitals & patient's conditions became intolerable 3. Few hospitals throughout 17th century G. Surgery 1. Long robed surgeons - university trained, did all types of surgeries, Royal college of Surgeons (1540) 2. Short robed surgeons - barber - surgeons, could only leech and shave, hierarchy of hemline
Islamic Hospitals & Medicine
A. Hospitals 1. School at Gundishapur included a library and a university - the beginning point 2. Medical care was free B. Persian physician Rhazes skilled in surgery -used the intestines of sheep for suturing and alcohol to cleanse patient wounds C. Muslim Medicine included inhalation anesthesia, precaution against adulterated drugs, origination of new drugs, asylums for mentally ill D. Brilliant start in medicine but war, politics, non-progressive philosophy and superstition stunted growth
The 21st Century
A. Increase in malpractice insurance B. High public expectations C. Zero tolerance for mistakes D. Ethical dilemmas like cloning E. Information explosion and social media F. National Health Insurance 1. Health care cost was $2.5 trillion in 2009 2. 49 million uninsured Americans at the beginning of the 21st century 3. Estimated cost of employer sponsored family coverage was $13,375 in 2009 4. Patient Protection & Affordable Care Act - see major provisions at pp. 583-586. 5. Supreme Court (SCOTUS) upheld constitutionality of ACA in 2012 - see pp. 586-587.
Development of English Law
A. Law reflects the civilizations & culture of those that live under it B. Varied like the nations who have populated its land - Romans, Saxons, Normans C. System of law based on custom, foreign literature and strong rulers
Government Organization
A. Legislative Branch - enacts laws, amends or repeals existing legislation, creates new legislation B. Executive Branch 1. Administers and enforces the law 2. Cabinet - 15 executive departments on federal level; Department of Health & Human Services is one example C. Judicial Branch - adjudication (resolving) disputes in accordance with law
Forms of Negligence
A. Malfeasance - performance of an unlawful or improper act (doing partial birth abortion when prohibited by law) B. Misfeasance - improper performance of an act (surgical procedure on the wrong body part) C. Nonfeasance - failure to act, when there is a duty to act (not ordering diagnostic tests that should have been ordered under the circumstances)
Early Hospitals in the United States
A. Manhattan Island - first account of a hospital for sick soldiers B. Philadelphia was the site of the first incorporated hospital in America - The Pennsylvania Hospital C. Dr. John Jones, an American, published a book in 1775 describing frightful conditions in hospitals. 1. Called attention to Hotel-Dieu of Paris 2. Placing three to five patients in one bed 3. Including the convalescent with the dying 4. Fracture cases placed with infectious cases 5. Infection rate of 100%, mortality rate of 20%, and mortality rate of 60% after amputations
20th Century Progress
A. New services developed B. Progress of non-profit insurance plans C. Increased confidence in hospitals
History's Common Theme: Recurring Infections
A. Nosocomial (hospital acquired) infections represent a leading cause of unnecessary injury and death. B. Bloodstream infections may represent the 8th leading cause of death in the U.S. C. Such infections may have caused 100,000 deaths and billions in health care costs.
Degrees of Negligence
A. Ordinary Negligence -failure to do what a reasonably prudent person would or would not do under the circumstances B. Gross Negligence - intentional or wanton omission of care that would be proper to provide, or committing an act that which would be improper to perform
Common Law Principles
A. Precedent - a judicial decision that may be used as a standard in subsequent similar cases B. Res Judicata -means "the thing is decided" which refers to that which has been previously decided by the court C. Stare Decisis - common law principle meaning "let the decision stand"
Objectives of Tort Law
A. Preservation of peace between individuals B. Find fault for wrong doing C. Deter wrongdoing by assessing monetary damages D. Compensation to indemnify the injured persons
Common Law in U.S.
A. Principles that have evolved and expanded from judicial decisions B. Origins in English Common Law C. Common law principles established in one state are not precedent for other states
Categories of Law
A. Public Law deals with the relationship between the government and individuals. B. Private Law deals with relationship among individuals.
Causation
A. Reasonable anticipation that harm or injury is likely to result from an act or an omission to act B. Act or conduct departing from recognized standard of care must be cause of patient's injury C. Injury must have resulted from breach of duty D. Injury must have been foreseeable
Criminal Negligence
A. Reckless disregard for another's safety B. Willful indifference to injury that could result from an act
Medieval Hospitals
A. Religion dominant influence B. Dissection considered a sacrilege because the body was created in the image of God C. Hospitals grew rapidly during crusades (1096) D. England built municipal hospitals E. During spread of leprosy in 12th and 13th centuries lazar houses were erected F. Hotel Dieu of Paris considered one of best hospitals during middle ages 1. Had rooms for patients in various stages of disease 2. Had special rooms for convalescents, and maternity 3. Two persons often shared one bed 4. Hung canopies over bed for privacy 5. Draperies were never washed and infections spread 6. Patients often worked on the hospital farm or garden
Separation of Powers
A. State is divided into branches B. Each branch has separate and independent powers and areas of responsibility C. Each branch is able to limit the power of the other branches D. Branches and powers of government 1. Legislative - write laws, enact laws, confirm justices, enact taxes & set the budget 2. Executive - veto laws, wage war, appoint justices, refuse certain expenditures 3. Judicial - declare laws unconstitutional, interpret laws, apply laws, compel testimony
Early Greek and Roman Hospitals
A. Term "hospital" came from the Latin word 'hospitalis' which concerns guests and their treatment B. Medical practice rife with mysticism, snakes considered sacred, patients presented gift before an altar & Greek temple were a refuge for sick
Federal Court System
A. U.S. District Court 1. Trial court of federal system 2. Has 94 district courts in 50 states 3. Districts of Columbia has one district court 4. Puerto Rico has one district court 5. Civil, criminal, admiralty and bankruptcy cases B. U.S Court of Appeals 1. Created to help US Supreme Court - 13 judicial courts 2. Reviews district court decisions & administrative agency decisions C. U.S. Supreme Court 1. Highest federal court 2. Only court created by federal constitution 3. Has eight Associate Justices and one Chief Justice
Test for Foreseeability
A. Whether a person of ordinary prudence and intelligence should have anticipated the danger to others caused by negligent act B. Cases of Foreseeability 1. O'Neill v. Montefiore Hospital, pp. 45-46 - O'Neill goes to emergency room at 5:00am with chest pains, receives no treatment, returns home & dies shortly thereafter. NY appellate court reversed lower court by holding that a physician who abandons a patient after undertaking examination or treatment can be held liable for malpractice. 2. Caruso v. Pine Manor Nursing Centre, p. 54 - Resident suffered dehydration due to the nursing facility's treatment. The proximate cause of the resident's dehydration was the nursing facility's failure to provide proper nourishment. 3. Hastings v. Baton Rouge Hospital, p. 55 - Patient brought to emergency room with two stab wounds and weak vital signs. Patient died after attempts to transfer him to a charity hospital. There was a duty to care based on state statutes & the hospital's bylaws. State Supreme Court held that evidence presented to the jury could indicate negligent treatment. 4. Niles v. City of San Rafael p.55 - Kelly Niles suffered a head injury & was taken to the emergency room & examined without being admitted to the hospital. Subsequently, an epidural hematoma was noted, but treatment could not prevent Kelly from becoming quadriplegic. Expert testimony established that recovery would have been very good with prompt treatment. The proximate cause of injury was placed with the hospital.
Statutory Law
A. Written law emanating from a legislative body B. Hierarchical order of statutory law 1. U.S. Constitution - highest in hierarchy of laws 2. State constitutions C. Article VI of the constitution - "This constitution...the supreme law of the land...Judges in every state shall be bound thereby...."
Government Ethics
Executive: Office of Government Ethics Congress: House Committee on Ethics & Senate Select Committee on Ethics Judiciary: Judicial Code of Conduct Independent: Office of Congressional Ethics
Temple at Epidaurus
First clinical records--inscribed on Temple columns -documented patient's name, history, and treatment outcomes
Introduction
History is relevant to understanding the past, defining the present, and influencing the future
Egyptian Medicine
Included castor oil and opium, wood mallet for anesthesia, surgery limited to fractures, home based medical care, temples used as hospitals
Early Military Hospitals
Limestone Pillar (2920 B.C.) with engraved pictures of wounded; Moses recorded rules of military hygiene in Deuteronomy; Hippocrates- war is the only proper school for a surgeon; under Romans surgery advanced largely through military surgery
Categories of Tort Law
Negligent, intentional, strict liability regardless of fault
Strict/Products Liability
The liability of manufacturer, seller or supplier of chattels to a buyer, or other third party for injuries sustained because of a defect in a product A. Product Liability Legal Theories are negligence, breach of warranty (express or implied) & strict liability B. Three types of product defects that incur liability are design defects, manufacturing defects & defects in marketing C. Negligence 1. Negligence, as applied to products liability, requires the plaintiff to establish duty, breach, injury, and causation 2. Duty - product manufactured by the defendant, breach- product defective when it left the manufacturer, injury-plaintiff(s) injured by the product, & causation - product the proximate cause of injury
Administrative Law
an extensive body of public law issued by either state or federal agencies to direct the enacted laws of the federal and state governments
India's Early Hospitals
utilized fresh fruits and vegetables, medications, massages and rules of personal cleanliness
Defamation of Character
communication to another person that tends to scorn or ridicule the defamed person's reputation 1. The offense of injuring a person's character, fame, or reputation by a false & malicious statement(s) 2. False oral or written communications to someone other than person defamed that tends to hold that person's reputation up too scorn or ridicule in eyes of others 3. Defamation of character includes libel (written form of defamation like signs, letters, photographs & cartoons); slander (oral forms of defamation) 4. Proof of defamation a. False and defamatory statement b. Communication of a statement to a person other than the plaintiff c. Fault on the part of the defendant d. Special monetary harm 5. Proof of harm is not required to recover damages when accusing a person of a crime, accusing a person of having a loathsome disease, using words harmful to a person's profession or business or, calling a woman unchaste. 6. Libel & performance appraisals - not meant for general publication, & must be published in a defamatory manner that injures one's reputation 7. Libel & newspaper articles - newspaper editorial cartoon depicting three persons resembling gangsters in a dilapidated building, identified as a particular nursing facility that had been closed by state order, was found to be an expression of pure opinion and was protected by the first amendment 8. Slander a. Lawsuits are rare because of the difficulty in provision in proving defamation, the small awards, and high legal fees b. Person who brings suit must generally prove special damages c.When defamatory words refer to a person in professional capacity, the professional need not show that the words caused damage 9. Defenses to a defamation action include truth and privilege, p.66 a. No liability for defamation if the statement made is true b. Absolute privilege includes statements made during judicial and legislative hearings, & confidential communications between spouses c. Qualified privilege covers statements made without malice that result from a legal or moral duty to speak on behalf of third persons d. Public figures are vulnerable to public scrutiny; & their suits are generally dismissed in the absence of malice, actual knowledge statements are false, or recklessness as to truth e. Chowdhry v. North Las Vegas Hospital, p. 67 - Claims of defamation and infliction of emotional distress were dismissed because respondents made statements to hospital personnel & other interested parties that reasonably reported Chowdhry's refusal to treat patient at the hospital.
Elements of Negligence
duty, breach of duty, injury, & causation (plaintiff must prove four elements of negligence to recover damages caused by negligence)
Hindu Physicians
emphasized daily baths, short nails and hair, white clothing and patient confidentiality
Laws
govern the relationship between private individuals and organizations; and between both of these parties and governments
Greek Temple Medicine
holistic -body and soul; medications - salt honey, sacred springs, hot and cold baths; sunshine, sea, air, pleasant vistas; libraries for visitors
Products Liability Defenses
include assumption of the risk (voluntary exposure to radiation therapy), intervening cause (IV solution contaminated by product user), disclaimers (manufacturers' inserts), contributory negligence (use of product in a way not intended), comparative fault (concurrent negligence by both manufacturer and plaintiff)
Intentional Torts
intent is present; and always involve a willful act
Malpractice
negligence by a professional person; malpractice suits may allege various mistakes made by doctors or other medical professionals, including misdiagnosis, mistreatment, delayed diagnosis, failure to diagnose, surgical errors, medical errors, or various types of negligence
Hippocrates - the Physician (b.ca 460 B.C.)
promoted principles of percussion and auscultation, wrote on fractures, performed numerous surgical operations, maintained detailed clinical records, described epilepsy, tuberculosis, malaria and ulcers, & instructed young medical students
Foreseeability
reasonable anticipation that harm or injury is likely to result from an act or omission to act
Early Christian Era
replaced Greek and romain hospitals, devoted entirely to care of the sick, accommodated patients in building outside church proper, emphasized doctrines of Jesus of love and pity, care included magical & religious rites, hospitals an outgrowth of religion -faith groups engaged in caring for the sick
Negligence
the commission or omission of an act that a reasonably prudent person would or would not do under the same or similar circumstances
False Imprisonment
unlawful restraint of an individual's personal liberty or the unlawful restraining or confining of an individual 1. Restraining patient without cause 2. Locking patient in secluded room for failing to attend therapy session 3. Legal Justification for restraint or seclusion a. Person represents a danger to self or others b. Criminal conduct c. Persons with highly contagious diseases based on state or federal statutes 4. Reducing use of restraints a. Policies and procedures that conform to federal and state guidelines b. Education and orientation of staff c. Education programs for patient and their families d. Sound appraisal of need for restraints e. Application of least the restrictive restraints f. Continuous monitoring of patients to determine the continuing need for restraints
