5 - PROFESSIONAL LIABILITY AND MEDICAL PRACTICE Flashcards
Define liability
- One’s legal responsibility or obligation for one’s action.
- All competent adults are liable or legally responsible for their actions on the job and in their private lives
What is law of agency?
Law governing relationship b/w principal (employer) and agent (employee)
Agency makes employers vicariously responsible for the acts of their employees while the employees are working on behalf of the employers
- May be expressed (written contract) or implied
Respondeat superior
Literally, “Let the master answer.”
A doctrine under which an employer is legally liable for the acts of his or her employees, if such acts were performed within the scope of the employees’ duties
Name a few general employer liabilities
Employment buildings and Grounds (safe, well-kept)
Automobiles
Employee Safety
Standard of care
Level of performance expected of a
health care worker in carrying out his or
her duties
Duty of care
Obligations of health care workers to
patients/nonpatients
Generally, if actions or omissions within the scope of a health care practitioner’s job could cause harm to someone, that person is owed a duty of care.
Ex. Duty of care to warn a nonpatient if a Pt states they are going to kill the nonpatient.
Reasonable person standard
The standard of behavior that judges a
person’s actions in a situation according to
what a reasonable person would or would
not do in the same circumstance
What three elements must be met for a lawsuit to be filed under respondeat superior?
- The injury to the plaintiff occurred while the employee was actually working for the employer.
- The injury was caused by something the employee would ordinarily do while working for the employer.
- The employer benefited in some way, however small or indirect, from the action the employee was performing when the injury occurred.
Privacy
Confidentiality
Privileged communication
- Freedom from unauthorized intrusion
- The act of holding information in confidence,
not to be released to unauthorized individuals - Information held confidential within a
protected relationship- Attorney-client, physician-patient relationships that protect from forced disclosure on witness stand, can be sued for breach of confidence
Feasance
Name all three types and define
“the performance of an act”
- Nonfeasance = failure to act when one should
- Misfeasance = the performance of lawful (legal) act in an illegal or improper manner
- Malfeasance = the performance of a totally wrongful or unlawful act
What four elements must be present to prove guilty of negligence by an HCP
Four Ds of negligence
- Duty - duty of care owed
- Dereliction - Duty of care breached
- Damage - dereliction cause Pt injury
- Direct Cause - The breach of duty of care was direct cause of injury
Damage Awards
General compensatory
to compensate for
injuries or losses due to violation of a
patient’s rights
Damage Awards
Special compensatory
to compensate for
losses not directly caused by the wrong
Damage Awards
Consequential
to compensate for losses
caused indirectly by a product defect
Damage Awards
Punitive
to punish the offender
Damage Awards
Nominal
to recognize that rights of patients
were violated, though no actual loss was
proven
Name the damage awards

Res ipsa liquitor
“The thing speaks for itself” - Negligence is obvious
the doctrine of common knowledge.
A situation that is so obviously negligent that no expert witnesses need be called
What could be the consequence of failing to appear in the court in case you have been subpoenaed for some reason?
may result in contempt-of-court charges.
Contempt of court is willful disobedience to or open disrespect of a court, judge, or legislative body. Punishable by fines or imprisonment
What three conditions must occur to be under Res ipsa liquitor
- Act must be under defendant’s(provider) control
- Pt must not contribute to the act
- Apparent the Pt wouldn’t have been harmed if reasonable care was used
Examples:
- leave foreign objects in Pt’s body during surgery
- damaging healthy tissue during surgery
- accidentally burning Pt while anesthetized
- causing infection by using unsterile instruments
Alternative Dispute Resolution (ADR)
Techniques for resolving civil disputes without going to court
–Uses neutral mediators or arbitrators
Two types:
- Mediation
- Arbitration
ADR Methods
Mediation
Neutral third party listens to both sides of argument & helps to resolve dispute.
Mediator doesn’t have authority to impose a solution
ADR Methods
Arbitration
method of settling disputes in which opposing parties agree to abide by decision of an arbitrator
- Arbitrator chosen by court or American Arbitration Assoc. (under terms of writtten contract)
- If no contract, each party selects an arbitrator, the two arbitrators select a third.
Advantages of ADR
- Reduced expenses and timeframe to settle
- More qualified decisionmaker (Knows medical jargon)
- Preserves reputations and records (not exposed to public)
- Mediation can help in adjusting policies, communication and procedures to prevent an occurrence again