HAS 4400 Session Seven Ch. 10 & 11 Dr. Burton. Tort A civil wrong not based on the violation of a contract. Something was done incorrectly Something that.

HAS 4400

Session Seven

Ch. 10 & 11

Dr. Burton

Tort

• A civil wrong not based on the violation of a contract.

• Something was done incorrectly

• Something that should have been done was omitted.

• Three types:– Intentional,Negligent, Strict liability

Intentional torts

• Assault and Battery

• Defamation

• False imprisonment

• Invasion of privacy

• Intentional infliction of emotional distress

• Malicious prosecution and abuse of process.

Negligent Torts

• Four Elements must be proved:1 duty (what should have been done)

2 breach of duty

3 injury

4 causation

“Someone must be willing to make a claim.”

Duty

• Expert testimony

• Common Sense

• Written Standards

• Negligence per se

• Respected minority rule

• Locality rule

• Legally imposed standards

Breach of duty

• Deviation from a standard of care

• Something was done that should not have been done or

• Something was not done that should have been done.

Injury

• Demonstration of physical, financial, or emotional injury.

Causation• The breach of duty must be proved to have

legally caused the injury.• New standard—loss of chance of recovery• Res Ipsa Loquitur elements of proof

– The accident is of a kind that does not happen without negligence

– The apparent cause is in the exclusive control of the defendants

– The person suing could not have contributed to the difficulties

– Evidence of the true cause is inaccessible to the person suing and

– The fact of injury is evident

Defenses• Res Judicata and collateral estoppel• Statute of limitations• Immunity

– Sovereign immunity– Charitable immunity

• Release• Exculpatory contract• Arbitration agreement• Contributory negligence• Comparative negligence• Damage caps

Breach of implied warrantiesand Strict liability

• Usually applies to goods and products.

• Blood transfusion

• Drugs

• Radiation

• Medical Devices

Liabilitypersonal liability, liability for employees and agents,

institutional liability • Respondeat superior “let the master answer”• Borrowed servant and Dual servant• Physician-employees and agents• Agency• Apparent or ostensible agency• Institutional liability• Off-premises liability

Hospitals

• Physical condition of building and grounds

• Selection and maintenance of equipment

• Selection and supervision of staff

Governing Body and Administrator

Members of the governing body have seldom been found personally liable for the activities of the hospital or for their own activities related to the hospital.

The administrator may be found liable for:negligently supervising their subordinates,for entering contracts outside of their authority, and for breaching duties imposed by statute

Supervisors

• Supervisors are not the employers of staff they supervise.

• Respondeat superior does not impose liability on supervisors for the acts and omissions of staff they supervise.

Nurses

• Duty to interpret and carry out orders

• Duty to monitor patients

• Duty to supervise patients

Other areas where respondeat superior applies

• Pharmacists• Physical therapists• Pathology• Radiology• Infection control• Emergency services• Genetic screening and testing• Residents and other students

Chapter 11Relationship with the patient

• Physician-patient

• Hospital-patient

Physician-patient

• Beginning the relationship– Contract to care for a certain population– Express contract– Implied contract

• Nondiscrimination• Ending the relationship

– Patient withdrawal– Transfer– Physician withdrawal– Unable to provide care– Abandonment

Hospital-Patient• Nondiscrimination statutes

– Title VI CRA– ADA– The Rehabilitation Act of 1973– The age Discrimination Act of 1975– State Law– Attempts to require discrimination

• Patient recruiting• Nonemergency Patients

– Common law right to admission– Contractual right to admission– Hill-Burton Community service– Statutory Right to Admission

• Reasons for nonadmission

The Emergency Medical Treatment and Active Labor Act (EMTALA)

• Screening

• Stabilization

• Transfers

• Penalties– Loss of Medicare entitlement– Law Suit

Discharge

• False imprisonment• Habeas corpus• Discharge of patients needing additional care• Level of care• Disruptive patients• Recommended procedure (review)• Refusal to leave• Temporary releases• Escape

Chapter 14Flynn

• Paternalism and Autonomy– Physicians have lost claim to the moral right

to act on a patient’s behalf, without need of the patient’s consent.

– Patient has assumed the role of partner who is capable of and interested in participating in all aspects of care.

Paternalism

Four reasons the paternal physician is deficient:– He acts on his own values– Patients know their own interests better than anyone else– Danger of abuse– The patient’s substantive and procedural rights to pursue or

reject any course of treatment based on subjective preferences

Autonomy• Adult legal right

– To refuse medical treatments– To employ all experimental and heroic

measures for as long as humanly possible even in view of a fatal diagnosis….

Informed Consent

A decision reached by a competent patient to accept a medical treatment or course of treatment.

Professional EthicsDiscussion Question

In recent years there has been a number of high profile criminal cases brought to court involving issues such as Medicare/Medicaid fraud.

1. Does this portend a change in the ethical makeup of healthcare professionals?

2. If you consider this to be a problem what would you do about it?

Case Study Three

“Robert Stevens” Page 247 Flynn Text