Chapter 5 - Professional Liability and Medical Malpractice Flashcards
Terminology
Law of agency
P. 109
A law that governs the relationship between a principal and his or her agent.
Liable
P. 109
Legally responsible or obligated.
Respondeat superior
P. 109
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.
Standard of care
P. 111
The level of performance expected of a healthcare practitioner in carrying out his or her professional duties.
Duty of care
P. 111
A legal obligation of healthcare workers to patients and, sometimes, nonpatients.
Reasonable person standard
P. 112
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.
Privacy
P. 114
Freedom from unauthorized intrusion.
Confidentiality
P. 114
The act of holding information in confidence, not to be released to unauthorized individuals.
Privileged communication
P. 114
Information held confidential within a protected relationship.
Malfeasance
P. 116
the performance of a totally wrongful and unlawful act.
Misfeasance
P. 116
The performance of a lawful act in an illegal or improper manner.
Nonfeasance
P. 116
The failure to act when one should.
Res ipsa loquitor
P. 118
“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.
Damages
P. 119
Court-ordered monetary awards to patients, given as a result of Legally recognized injuries to patients.
Wrongful death statutes
P. 120
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.
Summons
P. 121
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.
Subpoena
P. 122
A legal document requiring the recipient to appear as a witness in court or to give a deposition.
Deposition
P. 122
Sworn testimony given and recorded outside the courtroom during the pre-trial phase of a case.
Interrogatory
P. 122
A written set of questions requiring written answers from a plaintiff or defendant under oath.
Subpoena duces tecum
P. 122
A legal document requiring the recipient to bring certain written records to court to be used as evidence in a lawsuit.
Testimony
P. 123
Statements sworn to under oath by witnesses testifying in court and giving depositions.
• Witnesses may offer two kinds of testimony: fact and expert.
Alternative dispute resolution (ADR)
P. 126
Settlement of civil disputes between parties using neutral mediators or arbitrators without going to court.
Guidelines for Physicians and other health care practitioners:
(P. 112 - 113)
- 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.
for a lawsuit to succeed under respondeat Superior, the injured plaintiff must prove:
(P. 110)
- 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.
Employers have general liability for:
P. 110
- Employment buildings and grounds.
- Automobiles.
- Employee safety.
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)
- 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.
For res ipsa loquitor to apply, three conditions must exist:
P. 118
- The act of negligence must obviously be under the defendant’s control.
- The patient must not have contributed to the act.
- It must be apparent that the patient would not have been injured if reasonable care had been used.
Cases that fall under the doctrine of res ipsa loquitur include:
(P. 118)
- 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.
Types of Damages
P. 119
- 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.
Mediation
P. 127
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.
Arbitration
P. 127
Is a method of settling disputes in which the opposing parties agree to abide by the decision of an arbitrator.
In arbitrator is either selected directly by the disputing parties or chosen in one of the following two ways:
(P. 127)
- Under the terms of a written contract, an arbitrator is chosen by the court or by the American Arbitration Association.
- If no contract exists, each of the two involved parties select an arbitrator, and the two arbitrators select a third.
Arbitration may be binding
P. 127
In which the two parties agree to accept the decision of the arbitrator in lieu of going to trial.
Arbitration may be non-binding
P. 127
In which the disagreeing parties may choose to go to trial if neither party likes the arbitrator’s decision.
