1. Download Week 2 exercise narrative from Blackboard regarding Clinton Memorial Hospital
2. Reach a decision on whether the hospital and physicians were negligent
3. Explain your thought process through the 4 legal elements we just covered in this week's reading materials and slide lecture- be thorough and refer to each of the 4 legal elements in your post in detail- post here on Blackboard
—————
1. Review the facts on two cases found in Week 2 Slides/Lecture (on slides 59 and 60) regarding defective x ray use and wrong medication.
2. Reach a decision on whether the manufacturer is liable for damages in each of these situations. Why or why not? Provide your detailed rationale, citing readings from the text, to support your decision for each of the two cases. Provide a detailed written narrative.
3. Include details regarding your thought process applying the elements from negligence (slide 59) and strict liability (slide 60) – document your thought process and the elements as you apply them in your detailed written narrative.
On June 28, 2006, Cynthia Adae was taken to Clinton Memorial Hospital with symptoms of right shoulder pain, limited range of motion of her right upper extremity, a cough, and a fever. The attending doctors theorized that Adae could have an infection or thyroid abnormality. They considered performing a spinal tap, but didn’t. After ordering a series of blood tests, the doctors discharged Adae the next day without knowing the results.
Adae’s complaint noted that the blood tests showed she was suffering from an infection. One of the doctors “was made aware of the blood culture tests during the afternoon of July 2, 2006, but failed to advise the patient of those results or take any action to further evaluate or treat Ms. Adae,” according to the complaint.
Adae was admitted to Middletown Regional Hospital on July 1, 2006 and again discharged “without a diagnosis of her condition or an investigation of the blood culture tests that had been performed at Clinton Memorial Hospital.” After returning to the Middletown hospital four days later, the true cause of her condition, an epidural abscess, was learned. By that time, however, Adae had “developed progressive paraplegia, weakness of her upper and lower extremities, slurred speech, and acute renal failure.” She was rendered permanently and totally physically disabled at age 50.
Please apply the above facts to the 4 elements of negligent tort law:
1. Duty to use due care
· Standard of care
2. Breach of duty
3. Injury/actual damages
4. Causation
· Proximate cause
· Foreseeability
,
Torts: Negligent, Intentional, Strict Liability
Week 2
Tort Law: Definition
A tort is a civil wrong, other than a breach of contract, committed against a person or property for which a court provides a remedy in the form of an action for damages.
Tort Law: Types
Negligent Torts
Intentional Torts
Strict Liability
Negligent
It is the “unintentional” commission or omission of an act that a reasonably prudent person would or would not do under given circumstances.
What is commission of an act?
Commission of an Act
Administering the wrong medication
Administering the wrong dosage of a medication
Administering medication to the wrong patient
Performing a surgical procedure without patient consent
Performing a surgical procedure on the wrong patient or body part
Performing the wrong surgical procedure
What is omission of an act?
Omission of an Act
Failing to conduct a thorough history and physical examination
Failing to administer medications
Failing to order diagnostic tests
Failing to follow up on abnormal test results
Failing to conduct a time-out prior to surgery
Forms of Negligence
Malfeasance
Misfeasance
Nonfeasance
Malfeasance
Execution of an unlawful or improper act
For example: Performing a partial birth abortion in the third trimester when prohibited by law
Misfeasance
Improper performance of an act
For example: Wrong-sided surgery, such as the removal of a healthy left kidney instead of the diseased right kidney
Nonfeasance
Failure to act when there is a duty to act
For example: Failing to order diagnostic tests or prescribe medications that should have been ordered or prescribed under the circumstances
Degrees of Negligence
Slight: Minor deviation of what is expected under the circumstances
Ordinary negligence: Failure to do what an ordinary, prudent person would do
Gross negligence: Intentional or wanton omission of required care or performance of an act
Elements of Negligence
Duty to use due care
Standard of care
Breach of duty
Injury/actual damages
Causation
Proximate cause
Foreseeability
Element #1: Duty to Care
A legal obligation of care, performance, or observance imposed on one to conform to a recognized standard of care to safeguard the rights of others
Some examples in a healthcare context:
Duty to stabilize a patient
Duty to treat emergency patients
Duty to hire competent employees
Sometimes duty is set by law
Duty Created by Law
1. The defendant must have been within the specified class of persons outlined in the statute.
2. The plaintiff must have been injured in a way that the statute was designed to prevent.
3. The plaintiff must show that the injury would not have occurred if the statute had not been violated.
Duty to Care by Law Examples
Louisiana, by statute, imposes a duty on hospitals licensed in Louisiana to make emergency services available to all persons residing in the state regardless of insurance coverage or economic status.
California Code of Regulations requires that there shall be no fewer than two licensed nurses physically present in an emergency department when a patient is present.
Standard of Care
The standard of care describes the conduct expected of an individual in a given situation
Reasonably prudent person standard
Under same or similar circumstances
Reference to different characteristics of the actor (e.g., age, gender, physical condition, education, knowledge, training, and mental capacity)
Reasonably Prudent Person
Describes a nonexistent, hypothetical person who is put forward as the community ideal of what would be considered reasonable behavior
Similar Circumstances
Circumstances at the time of the injury
Circumstances of the alleged wrongdoer(s) at the time of injury
Age
Physical condition
Education and training
Licenses held
Mental capacity
Standard of Care: How is it determined?
Established by a legislative enactment or administrative regulation
Established by judicial decision
Applied to the facts of the case by the trial judge or jury if there is no such enactment, regulation, or decision
Courts often rely on the testimony of an expert witness as to the standard of care required.
Community standard of care vs. national standard of care
Internal policies and procedures
Community vs. National Standard
Community standard
The hometown standard: We want to do things our way
National standard
Most currently accepted standard of care on a national basis
Example Case: Hiring Practices
The nurse was hired sight unseen over the telephone.
The applicant falsely stated in an employee application that he was licensed as an LPN.
His license was not verified by the employer.
He had committed 56 criminal offenses of theft.
He assaulted a resident and broke the resident’s leg.
Hiring Practices: Employer’s Duty
Standard expected:
The employer had a “duty” to validate the nurse’s professional license.
Element #2: Breach of Duty
Failure to conform to or the departure from a required duty of care owed to a person
Deviation from the recognized standard of care
Breach of Duty Examples
For example, breach of duty occurs when:
A physician fails to respond to his or her on-call duties.
An employer fails to adequately conduct a pre-employment check (e.g., licensure, background check).
Breach of Duty Examples
Hospital regulations provided that when a physician cannot be reached or refuses a call, the chief of service must be notified so that another physician can be obtained. This was not done.
A plaintiff need not prove that the patient would have survived if proper treatment had been administered, only that the patient would have had a chance of survival.
Hiring Practices: Breach of Duty Example
The employer failed to verify the applicant’s licensure.
A more thorough background check should have revealed this employee’s previous criminal conduct.
Element #3: Injury
Actual damages must be established
Ex: death, physical harm, pain, suffering, loss of income, tarnished reputation
If there are no injuries, no damages are due
Hiring Practices: Injury Example
The resident suffered a broken leg
Element #4: Causation
Defendant’s negligent conduct plaintiff’s injury
Two important concepts:
But-for rule
Foreseeability
But For Causation
Breach of care must be the cause of the patient’s injury
One way to establish the causal relationship between the particular conduct of a defendant and a plaintiff’s injury is through the process of eliminating causes other than the defendant’s conduct.
Foreseeability
Reasonable anticipation that harm or injury is likely to result from an act or an omission to act
The test for foreseeability is whether a person of ordinary prudence and intelligence should have anticipated danger to others caused by his or her negligent act.
Hiring Practices: Causation Established
A person of ordinary prudence and intelligence should have anticipated the danger to the resident caused by the employer’s negligent act (injury was foreseeable)
The patient suffered a broken leg but for Defendant’s failure to verify licensure and conduct an adequate background check
Summary & Example
Exercise 1 –Post your decision on Discussion Board and a Reply Post to complete assignment
Download Week 2 exercise from Blackboard
Reach a decision on whether the hospital and physicians were negligent
Explain your thought process through the 4 legal elements we just covered
Intentional Torts
Proof of Intent (Defendant intended the harmful consequences of the behavior)
A Willful Act
Intentional Torts
Assault and battery
False imprisonment
Defamation of character
Fraud
Invasion of privacy
Intentional infliction of mental distress
Assault and Battery
Assault: Deliberate threat, coupled with apparent ability to do physical harm to another. Actual contact is not necessary.
Battery: Intentional touching of another’s person in a socially impermissible manner without person’s consent
Assault
The person attempting to touch another unlawfully must possess apparent present ability to commit battery.
The person threatened must be aware of or have actual knowledge of an immediate threat of a battery and must fear it.
Battery
Failure to obtain consent prior to surgery
Administering blood against patient’s express wishes
Physically restraining one who refuses to eat
False Imprisonment
Unlawful restraint of an individual’s personal liberty or unlawful restraining or confining an individual
Some exceptions:
Physically violent persons (represents a danger to self or others)
Contagious diseases
Intoxicated persons
Criminal conduct
A patient has the right to be free from any physical restraints imposed or psychoactive drugs administered for purposes of discipline and that are not required to treat a patient’s medical symptoms
Use of prescription drugs must be justified by indications documented in the medical chart
Use of Restraints in Nursing Homes
Defamation
The offense of injuring a person’s character, fame, or reputation by false and malicious statements
Oral form: Slander
Written form: Libel (ex: letters, signs, photos, cartoons)
Defamation: Proof
A false and defamatory statement
Communication of a statement to a person other than the plaintiff
Usually requires actual proof of harm, except…
Accusations That Require No Proof of Actual Harm
Accusing a person of a crime
Accusing a person of having a loathsome disease
Using words that are harmful to a person’s profession or business (when defamatory words refer to a person in a professional capacity, the professional need not show that the words caused damage)
Calling a woman unchaste
Newspaper Articles: Cartoon
Jack draws a cartoon depicting Paul having a rendezvous with a new grad nurse in an empty patient room. The incident in fact never occurred.
Is there a defamatory statement here?
Newspaper Articles: Cartoon
Yes!
A defamatory statement can take the form of a cartoon because it is capable of adversely affecting a person’s reputation
Defamation: Defenses
Truth: No liability for defamation if it can be shown that the statement is true.
Privilege
Absolute
Statements made during judicial and legislative hearings
Confidential communications between spouses
Qualified
Statements made as the result of a legal or moral duty to speak in the interests of third persons (without malice)
Fraud
A willful and intentional misrepresentation that could cause harm or loss to a person or property
Includes any cunning, deception, or artifice used in violation of legal or equitable duty to circumvent, cheat, or deceive another
Ex: Purposeful concealment from patient of the presence of surgical sponges in his or her abdomen following surgery
Proof of Fraud
1. An untrue statement known to be untrue by the party making it and made with the intent to deceive
2. Justifiable reliance by the victim on the truth of the statement
3. Damages as a result of that reliance
Invasion of Privacy
A wrong that invades the right of a person to personal privacy
Recognized as a right to be left alone
Right to be free from unwarranted publicity & exposure to public view
Ex: Medical records are confidential and should not be disclosed without the patient’s permission, except when there is a legal obligation to do so
Intentional Infliction of Mental Distress
Conduct that is so outrageous that it goes beyond bounds tolerated by decent society
Mental suffering resulting from painful emotions
Ex: Grief, Shame, Public humiliation, Despair
Mental Distress Examples
Mother shown premature infant
Verbal abuse of patient by physician
Strict Liability (Products Liability)
Liability of a manufacturer, seller, or supplier of goods to a buyer, or other third party, for injuries sustained because of a defect in a product
Liability without fault: Plaintiff need not prove intent, recklessness, negligence, or any other kind of wrongfulness on the defendant’s part
But strict liability is not “automatic” liability
Strict Liability (Products Liability)
Elements required to establish strict liability
Product manufactured by defendant
Product defective at time it left manufacturer
Plaintiff injured by product
Defective product proximate cause of injuries
Products Liability: Defenses
Assumption of a risk
Voluntary exposure to risks, such as radiation therapy and chemotherapy
Intervening cause
An IV solution contaminated by product user
Contributory negligence
Use of product in a way it was not intended to be used
Products Liability: Defenses
Comparative fault
Injury due to concurrent negligence of both manufacturer and plaintiff
Disclaimers
Manufacturers’ inserts
Example of how SL works
Exercise 1-Negligence and Strict Liability
Review the following facts on two cases on slides 59 and 60 regarding defective x ray use and wrong medication.
Reach a decision on whether the manufacturer is liable for damages in each of these situations. Why or why not?
Walk through your thought process applying the elements from negligence (slide 59) and strict liability (slide 60) – document your thought process and the elements as you apply them.
Defective X-ray Unit
Mindy places Candice (the patient) on the table of the hospital’s new manufacturer-installed X-ray unit.
While in the control room, Mindy hears a crash.
She rushes to the patient and finds that a section of the X-ray unit fell on Candice, further injuring her already broken leg.
Candice sues the manufacturer for negligence.
Can Candice recover damages?
Wrong Medication
Stanley refills his drug prescription at Discount Drugs, where he has been a customer for 10 years. Prior to taking his nightly dosage, he notices the pill appears larger than normal. He phones Discount Drugs and explains his concern. The pharmacist assures Stanley that generic drugs sometimes are larger because of formula fillers, but that the medication dosage in his drug is correct. Stanley takes the drug and never wakes up. The dosage given was five times that which had been prescribed. The container from which the pharmacist filled Stanley’s prescription had been mislabeled by the manufacturer.
Is the pharmacy or manufacturer liable for Stanley’s death under strict liability?
Tort Reform
The tort system is inadequate to prevent medical malpractice.
Damage awards as deterrents have failed.
Exorbitant jury awards and malpractice insurance premiums cost billions of dollars annually.
State legislatures call for reform.
Physician Practice: Defensive Medicine
Under-treatment
Avoiding high-risk tests and procedures
Overtreatment
Excessive use of diagnostic tests
Tort Reform Schemes
Mediation and arbitration
Statute of limitations
Limit of time a plaintiff has to file a suit
Structured awards
Periodic partial payment of judgements vs. lump sum
Medical malpractice screening panels
Not binding but encourages settlements
Collateral source rule
Prohibits a court from taking in account other sources of payment for plaintiff’s damages
Contingency fee limitations
Payment for services rendered by an attorney predicated on the favorable outcome of a case
Tort Reform Schemes
Countersuits: frivolous claims
Lawyers must perform due diligence for factual basis
Losing party must pay prevailing party damages from litigation
Joint and several liability (vs. modified)
A person causing an injury concurrently with another can be held liable for the entire judgment
Fair Share Act
Malpractice caps
Laws that limit the total dollar damages allowable
Constitutionality varies between states
No-fault system
Compensates injured parties for economic losses regardless of fault
Tort Reform Schemes
Regulations of insurance practices
Statutes of limitations
Reducing the risks of malpractice
Risk management
Performance Improvement
Continuous quality improvement (CQI)
Peer review
Collaboration: Tort Reform
A concerted effort must be made to include all health professionals in the process of tort reform
The present system of punishment for all because of the inadequacies of the few has proven to be costly and far from effective
The key to improving quality and controlling costs is cooperation, not alienation
Policymakers have failed in this arena and must return to a commonsense approach to policy development by including those who are most directly involved