5 - PROFESSIONAL LIABILITY AND MEDICAL PRACTICE

Question 1

Define liability

Answer 1

• 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

Question 2

What is law of agency?

Answer 2

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

Question 3

Respondeat superior

Answer 3

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

Question 4

Name a few general employer liabilities

Answer 4

Employment buildings and Grounds (safe, well-kept)

Automobiles

Employee Safety

Question 5

Standard of care

Answer 5

Level of performance expected of a
health care worker in carrying out his or
her duties

Question 6

Duty of care

Answer 6

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.

Question 7

Reasonable person standard

Answer 7

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

Question 8

What three elements must be met for a lawsuit to be filed under respondeat superior?

Answer 8

1. The injury to the plaintiff occurred while the employee was actually working for the employer.
2. The injury was caused by something the employee would ordinarily do while working for the employer.
3. The employer benefited in some way, however small or indirect, from the action the employee was performing when the injury occurred.

Question 9

Privacy

Confidentiality

Privileged communication

Answer 9

1. Freedom from unauthorized intrusion
2. The act of holding information in confidence,
   not to be released to unauthorized individuals
3. Information held confidential within a
   protected relationship
   
   1. Attorney-client, physician-patient relationships that protect from forced disclosure on witness stand, can be sued for breach of confidence

Question 10

Feasance

Name all three types and define

Answer 10

“the performance of an act”

1. Nonfeasance = failure to act when one should
2. Misfeasance = the performance of lawful (legal) act in an illegal or improper manner
3. Malfeasance = the performance of a totally wrongful or unlawful act

Question 11

What four elements must be present to prove guilty of negligence by an HCP

Answer 11

Four Ds of negligence

1. Duty - duty of care owed
2. Dereliction - Duty of care breached
3. Damage - dereliction cause Pt injury
4. Direct Cause - The breach of duty of care was direct cause of injury

Question 12

Damage Awards

General compensatory

Answer 12

to compensate for
injuries or losses due to violation of a
patient’s rights

Question 13

Damage Awards

Special compensatory

Answer 13

to compensate for
losses not directly caused by the wrong

Question 14

Damage Awards

Consequential

Answer 14

to compensate for losses
caused indirectly by a product defect

Question 15

Damage Awards

Punitive

Answer 15

to punish the offender

Question 16

Damage Awards

Nominal

Answer 16

to recognize that rights of patients
were violated, though no actual loss was
proven

Question 17

Name the damage awards

Answer 17

Question 18

Res ipsa liquitor

Answer 18

“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

Question 19

What could be the consequence of failing to appear in the court in case you have been subpoenaed for some reason?

Answer 19

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

Question 20

What three conditions must occur to be under Res ipsa liquitor

Answer 20

1. Act must be under defendant’s(provider) control
2. Pt must not contribute to the act
3. 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

Question 21

Alternative Dispute Resolution (ADR)

Answer 21

Techniques for resolving civil disputes without going to court
–Uses neutral mediators or arbitrators

Two types:

1. Mediation
2. Arbitration

Question 22

ADR Methods

Mediation

Answer 22

Neutral third party listens to both sides of argument & helps to resolve dispute.

Mediator doesn’t have authority to impose a solution

Question 23

ADR Methods

Arbitration

Answer 23

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.

Question 24

Advantages of ADR

Answer 24

• 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