Chapter 5 - Professional Liability and Medical Malpractice

Question 1

Law of agency

P. 109

Answer 1

A law that governs the relationship between a principal and his or her agent.

Question 2

Liable

P. 109

Answer 2

Legally responsible or obligated.

Question 3

Respondeat superior

P. 109

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

Standard of care

P. 111

Answer 4

The level of performance expected of a healthcare practitioner in carrying out his or her professional duties.

Question 5

Duty of care

P. 111

Answer 5

A legal obligation of healthcare workers to patients and, sometimes, nonpatients.

Question 6

Reasonable person standard

P. 112

Answer 6

That standard of behavior that judges a person’s actions in a situation according to what a reasonable person would or would not do under similar circumstances.

Question 7

Privacy

P. 114

Answer 7

Freedom from unauthorized intrusion.

Question 8

Confidentiality

P. 114

Answer 8

The act of holding information in confidence, not to be released to unauthorized individuals.

Question 9

Privileged communication

P. 114

Answer 9

Information held confidential within a protected relationship.

Question 10

Malfeasance

P. 116

Answer 10

the performance of a totally wrongful and unlawful act.

Question 11

Misfeasance

P. 116

Answer 11

The performance of a lawful act in an illegal or improper manner.

Question 12

Nonfeasance

P. 116

Answer 12

The failure to act when one should.

Question 13

Res ipsa loquitor

P. 118

Answer 13

“The thing speaks for itself “; also known as the doctrine of common knowledge. A situation that is so obviously negligent that no expert witnesses need be called.

Question 14

Damages

P. 119

Answer 14

Court-ordered monetary awards to patients, given as a result of Legally recognized injuries to patients.

Question 15

Wrongful death statutes

P. 120

Answer 15

State statutes that allow a person’s beneficiaries to collect for lost to the estate of the deceased for future earnings when a death is judged to have been due to negligence.

Question 16

Summons

P. 121

Answer 16

A written notification issued by the clerk of the court and delivered with a copy of the complaint to the defendant in a lawsuit, directing him or her to respond to the charges brought in a court of law.

Question 17

Subpoena

P. 122

Answer 17

A legal document requiring the recipient to appear as a witness in court or to give a deposition.

Question 18

Deposition

P. 122

Answer 18

Sworn testimony given and recorded outside the courtroom during the pre-trial phase of a case.

Question 19

Interrogatory

P. 122

Answer 19

A written set of questions requiring written answers from a plaintiff or defendant under oath.

Question 20

Subpoena duces tecum

P. 122

Answer 20

A legal document requiring the recipient to bring certain written records to court to be used as evidence in a lawsuit.

Question 21

Testimony

P. 123

Answer 21

Statements sworn to under oath by witnesses testifying in court and giving depositions.

• Witnesses may offer two kinds of testimony: fact and expert.

Question 22

Alternative dispute resolution (ADR)

P. 126

Answer 22

Settlement of civil disputes between parties using neutral mediators or arbitrators without going to court.

Question 23

Guidelines for Physicians and other health care practitioners:

(P. 112 - 113)

Answer 23

• practice within the scope of your training and capabilities.
• use the professional title commensurate with your education and experience.
• maintain confidentiality.
• prepare and maintain health records.
• document accurately.
• use appropriate legal and ethical guidelines when releasing information.
• follow and employer’s established policies dealing with the health care contract.
• follow legal guidelines and maintain awareness of Health Care legislation and regulations.
• maintain and dispose of regulated substances in compliance with government guidelines.
• follow established risk management and safety procedures.
• Meet the requirements for professional credentialing.
• help develop and maintain professional, policy, and procedure manuals.

Question 24

for a lawsuit to succeed under respondeat Superior, the injured plaintiff must prove:

(P. 110)

Answer 24

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 25

Employers have general liability for:

P. 110

Answer 25

• Employment buildings and grounds.
• Automobiles.
• Employee safety.

Question 26

Four elements must be present in a given situation to prove that a health care professional is guilty of negligence. Sometimes called the “four Ds of negligence,” these elements include:

(P. 116 - 117)

Answer 26

• Duty - The person charged with negligence owed a duty of care to the accuser.
• Dereliction - The health care provider breached the duty of care to the patient.
• Damage - The health care provider’s dereliction of duty caused injury to the patient. (Depending on the outcome of the malpractice trial, monetary awards to plaintiffs may be court ordered as compensation for proven injuries. These awards are referred to as damages.)
• Direct cause - The breach of the duty of care to the patient was a direct cause of the patient’s injury.

Question 27

For res ipsa loquitor to apply, three conditions must exist:

P. 118

Answer 27

1. The act of negligence must obviously be under the defendant’s control.
2. The patient must not have contributed to the act.
3. It must be apparent that the patient would not have been injured if reasonable care had been used.

Question 28

Cases that fall under the doctrine of res ipsa loquitur include:

(P. 118)

Answer 28

• Unintentionally leaving foreign bodies, such as sponges are instruments, inside a patient’s body during surgery.
• Accidentally burning or otherwise injuring a patient while he or she is anesthetized.
• Damaging healthy tissue during an operation.
• Causing an infection by the use of unsterilized instruments.

Question 29

Types of Damages

P. 119

Answer 29

• General Compensatory: to compensate for injuries or losses due to violation of patient rights.
  * Considered by court: Physical disability? Loss of earnings? Mental anguish? Loss of service of spouse or child? Losses to date? Future losses?
  * Award: Specified by Court. Dollar value need not be proved; loss must be proved.
• Special Compensatory: to compensate for losses not directly caused by the wrong.
  * Considered by court: Additional medical expenses?
  * Specified by court. Dollar value and loss must be proved.
• Consequential: To compensate for losses caused indirectly by a product defect.
  * Considered by court: loss covered by product warranty? Personal injury?
  * Award: no limit on damages if personal injuries.
• Punitive: To punish the offender.
  * Considered by court: How serious was the breach of conduct? How much can the defendant afford to pay?
  * Award: In some cases, the amount of damages is set by law.
• Nominal: To recognize the rights of the patient were violated, though no actual loss was proved.
  * Considered by court: Legal rights of the patient violated? Actual loss proved?
  * Award: Token award, usually $1.

Question 30

Mediation

P. 127

Answer 30

Is an ADR method in which a neutral third party listens to both sides of the argument and then helps resolve the dispute.

• the mediator does not have the authority to impose a solution on the parties involved.

Question 31

Arbitration

P. 127

Answer 31

Is a method of settling disputes in which the opposing parties agree to abide by the decision of an arbitrator.

Question 32

In arbitrator is either selected directly by the disputing parties or chosen in one of the following two ways:

(P. 127)

Answer 32

1. Under the terms of a written contract, an arbitrator is chosen by the court or by the American Arbitration Association.
2. If no contract exists, each of the two involved parties select an arbitrator, and the two arbitrators select a third.

Question 33

Arbitration may be binding

P. 127

Answer 33

In which the two parties agree to accept the decision of the arbitrator in lieu of going to trial.

Question 34

Arbitration may be non-binding

P. 127

Answer 34

In which the disagreeing parties may choose to go to trial if neither party likes the arbitrator’s decision.