© 2013 The McGraw-Hill Companies, Inc. All rights reserved. Ch 6 Defenses to Liability Suits.

© 2013 The McGraw-Hill Companies, Inc. All rights reserved.

Ch 6Defenses to

Liability Suits


Learning Outcomes

6.1 List and define the four Cs of medical malpractice prevention.

6.2 Describe the various defenses to professional liability suits.

6.3 Explain the purpose of quality improvement and risk management within a health care facility.

6.4 Discuss the five different types of medical liability insurance.

6-2


Preventing Liability Suits

• Prevention is preferable to litigating a malpractice suit.

• Health care practitioners who use reasonable care in preventing professional liability claims are least likely to be faced with defending themselves against such claims.

6-3


4 Cs/Medical Malpractice Prevention

• Caring

• Communication

• Competence

• Charting

6-4


Using Caring and Competence

6-5


7 Common Reasons for Malpractice

• Cancer misdiagnosis/failure or delay

• Birth injury/negligent maternity care

• Wrong diagnosis or misdiagnosis of negligent fracture or trauma

• Delay in diagnosis or failure to consult in timely manner

6-6


7 Common Reasons for Malpractice

• Medication errors or medication malpractice from negligent drug treatment

• Malpractice resulting from physician’s negligent procedures or surgical errors

• Failure to obtain informed consent

6-7


Reasons People Sue

6-8


Actions that Might Prevent Litigation

• Explanation and apology

• Correction of the mistake

• Financial compensation

• Correct treatment at the time

• An admission of negligence

• “Should have been listened to”

6-9


Actions that Might Prevent Litigation

• Disciplinary action against medical personnel involved

• Honesty

• Investigation by the hospital

6-10


What Not to Say After Complications

6-11


What People Want/Adverse Effects

6-12


Communicating with Patients

• Develop good listening skills.• Set aside time of day to advise and

call back patients.• Thoroughly explain illnesses and

procedures.• Make sure informed consent forms are

signed.• Avoid statements admitting guilt.

6-13


Communicating with Patients

• Use tact, good judgment and professionalism with patients.

• Refrain from overly optimistic statements.

• Advise patients when physicians will be gone for long periods of time.

• Reach an understanding about fees.

6-14


Documentation

• Referrals

• Missed appointments

• Dismissals

• Treatment refusals

• All other patient contact

6-15


Types of Defenses

• Denial of wrongdoing

• Affirmative defenses– Contributory negligence

– Comparative negligence

– Assumption of risk

– Emergency

6-16


Types of Defenses

• Technical defenses

• Release of tortfeaser

• Res Judicata

• Statute of limitations

6-17


Question

Tell whether the following statement is true or false

A physician claims that a patient was negligent in following her treatment plan and caused her own injury. This type of defense is known as assumption of risk.

True

False

6-18


Answer

• FalseA physician claims that a patient was negligent in following her treatment plan and caused her own injury. This type of defense is known as contributory negligence. Assumption of risk is a defense based on the contention that the patient knew of the inherent risks before treatment was performed and agreed to those risks.

6-19


Conditions for Emergency Defense

• A true emergency situation existed and was not caused by the defendant

• The appropriate standard of care was met, given the emergency situation

6-20


Release of Tortfeasor

• A technical defense that prohibits a lawsuit against the person who caused an injury (the tortfeasor) if he or she was expressly released from further liability in the settlement of a suit.– The victim cannot sue the physician

unless the right to do so was reserved in the release.

6-21


Res Judicata

• “The thing has been decided.”

–A claim cannot be retried between the same parties if it has already been resolved.

6-22


Question

Tell whether the following statement is true or false.

A physician who loses a malpractice suit cannot afterwards sue the patient for breach of contract based on information presented in the trial.

True

False

6-23


Answer

True

A physician who loses a malpractice suit cannot afterwards sue the patient for breach of contract based on information presented in the trial. This defense is called “Res Judicata” (“The thing has been decided.”)

6-24


Statute of Limitations

• Vary from state to state

• Generally specifies one to six years with two years most common

–It specifies when the statute of limitations begins

–It may be modified for minors or people who are legally insane

6-25


Risk Management

• Identifying problem practices or behaviors and eliminating them.

• Providing written job descriptions

• Providing office procedure manuals and employee handbooks– Includes charting, scheduling patients,

communicating with patients, and writing prescriptions

6-26


Quality Improvement/Assurance

• Program to uphold the quality of patient care and reduce liability risk

• Part of methods used to manage risk

–May assume responsibility for compliance with government regulatory agencies

6-27


Professional Liability Insurance

• Covers costs of defending a medical malpractice lawsuit up to policy limit

–Cost of insurance is based on physician’s specialty and dollar amount of the policy

–Usually required to obtain hospital privileges or work in a HMO

6-28


Medical Malpractice Insurance/Types

• Claims-made insurance– Covers the insurer only for claims made

(not for injury occurring) while policy is in force

• Occurrence insurance– Covers the insurer for any claims made

that occurred while policy is in force regardless of when it occurred

6-29


Extended Coverage Insurance

• Tail coverage

• Prior acts insurance coverage

• Self-insurance coverage

6-30

© 2013 The McGraw-Hill Companies, Inc. All rights reserved. Ch 6 Defenses to Liability Suits.

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