Chapter 6 Test 2 Flashcards
A civil wrong
Tort
A legal obligation or responsibility by a party in a lawsuit
Liability
Person who commits a tort - also called defendant
Tortfeasor
Most healthcare lawsuits are based on _____.
Torts
Torts can be broadly divided into wrongs committed against:
A person
Personal property
Real property (Land)
Torts are most commonly classified as:
Intentional torts Unintentional torts (negligence) Strict liability (responsibility regardless of fault)
A tortfeasor refers to which individual in a legal court case?
a. Prosecutor
b. Plaintiff
c. Judge
d. Defendant
Defendant
Battery
Assault
False imprisonment
Intentional infliction of emotional distress
Intentional Torts
Intentional, nonconsensual contact
Battery
Conduct causing apprehension of harmful or offensive contact
Assault
Intentional confinement against a person’s will
False imprisonment
Intentional conduct resulting in extreme emotional distress
Intentional infliction of emotional distress
Consent by the plaintiff Example: Hospital admission consent form Privilege by virtue of the relationship Example: Parent spanking a child Necessity Example: Self-defense
Defenses to intentional torts
Unintentional conduct involving acting or failing to act as a reasonably prudent person would, resulting in harm or injury to another
Is based on standard of care:
What an individual is expected to do or not do in a particular situation
Standard of care is established by statue or ordinance, judicial decision, professional association, practice
is the basis for most medical malpractice (professional misconduct) cases, but medical malpractice can be based on intentional tort or contract
______ infliction of emotional distress can accompany ______ as a cause of action
Negligence
What are the types of negligence?
Nonfeasance, Misfeasance, and Malfeasance
Failure to perform an act
Nonfeasance
Improper performance of an act
Misfeasance
Performance of a wrongful act that may be unlawful
Malfeasance
What are the degrees of negligence?
Ordinary and Gross
Failure to exercise ordinary care
Ordinary
Very great or excessive negligence; extreme departure from the ordinary standard of care; reckless disregard
Gross
Duty of care
Breach of duty
Injury (resulting from breach)
Causation (connection between the defendant’s breach and the plaintiff’s injury).
Elements of negligence
What are the two types of causation?
Actual
Proximate
(cause-in-fact): “But-for” the defendant’s conduct, the result would not have happened.
Actual causation
Foreseeability
Proximate causation
The negligent tort of misfeasance refers to which of the following statements?
a. Characterized by the additional element of intentional conduct in that such conduct is intended to cause damage
b. Improper performance of an act that a person might lawfully do or active misconduct that causes injury to another
c. Failure to do an act that a person is under a duty to do and that a person of ordinary prudence would have done under the same or similar circumstances
d. What an individual is expected to do or not do in a particular situation
Improper performance of an act that a person might lawfully do or active misconduct that causes injury to another
Compensate a plaintiff for physical and monetary injuries
Damages
To recognize wrongdoing; little to no dollar amount
Nominal damages
Compensate plaintiff for losses. They are divided into two.
Compensatory damages
Tangible losses resulting from the circumstances (e.g., medical bills; lost wages)
Economic damages (special)
Intangible loss (e.g., emotional distress)
Non-economic damages (general)
Beyond compensatory damages; intended to punish or deter conduct (e.g., reckless or egregious)
Punitive
Plaintiff generally has the burden of proof to prove all elements
Negligence(again)
Exception: ___________ (the thing speaks for itself)
The defendant has the burden of proof (“Guilty until proven innocent”)
Circumstances accompanying injury may permit inference of defendant’s negligence
Elements
Injury of a kind which ordinarily does not occur in the absence of someone’s negligence
Injury caused by an agency or instrumentality within defendant’s exclusive control
Injury not due to any voluntary action or contribution by plaintiff
Res ipsa loquitur
The three defenses to negligence are _____.
Contributory negligence
Comparative negligence
Assumption of Risk
Bars a plaintiff from recovering any damages if defendant proves plaintiff’s contributed in any part to the injury
Contributory negligence
Plaintiff’s recovery is reduced based on his or her percentage of negligence that contributed to the injury
Comparative negligence
What are the two types of Comparative negligence?
Pure and Partial(Modified)
Recovery based on actual percentages
Pure Comparative negligence
Recovery permitted only if plaintiff is not more negligent than the defendant (i.e., plaintiff cannot be >50% negligent)
Partial or modified Comparative negligence
Bars a plaintiff from recovering on negligence claim if defendant proves that plaintiff
Had actual knowledge of a danger
Understood and appreciated the risks associated with the danger
Voluntarily exposed himself or herself to those risks
Usually not a good defense in medical cases because people seek medical care out of need instead of true voluntariness
Assumption of risk
Mr. Jones is suing Dr. Marks for breach of confidentiality in regard to the disclosure of his positive test results related to a sexually transmitted disease to the health department. What defense might Dr. Marks claim to counter Mr. Jones claim?
a. Assumption of risk because of the disease that Mr. Jones contracted
b. Mr. Jones signed an authorization to disclose his information.
c. Because the test results were positive for a sexually transmitted disease, the results had to be forward to the health department by law.
d. a and b
e. b and c
Mr. Jones signed an authorization to disclose his information. And. Because the test results were positive for a sexually transmitted disease, the results had to be forward to the health department by law.
Charitable immunity eliminated as a theory to protect hospitals from liability
Darling v. Charleston Memorial Community Hospital (Illinois Supreme Court 1965)
Two Doctrines to establish liability: Corporate negligence and Respondeat superior/vicarious liability
Theories of Healthcare Organization Negligence Liability
organization is liable for negligence in its own right
Corporate negligence (primary liability)
organization is liable to patients for torts conducted by its employees and, increasingly, contractors
Applies to those acting “within the scope” of their duties
Respondeat superior/vicarious liability (secondary liability)
If a hospital is held liable in its own right for the harm that the physicians on its medical staff caused to a patient, the legal theory being applied is:
a. Vicarious liability
b. Respondeat superior
c. Corporate negligence
d. Secondary liability
Corporate negligence
Third tort classification
Liability without fault
Applies liability for loss due to one’s acts or omissions regardless of fault
Most common application of the doctrine has been in areas of abnormally dangerous activities or product liability cases
Strict Liability
False communication about a person to another, harming the person’s reputation
-Must prove-
Defendant made a false and defamatory statement about the plaintiff.
Statement was not privileged (i.e., made in good faith to persons with a legitimate reason to know)
Statement was published (made) to a third person.
Conduct was negligence or a higher degree of intent
Actual or presumed damages resulted (proof of monetary damages not required in cases such as wrongful accusations of crimes, loathsome diseases, one’s profession, or a woman’s chastity)
Defamation of character
Slander defamation is another word for ____.
Oral
Libel defamation is another word for ____.
Written
Truth—The statement was true
Privilege—Communication was made in good faith at an appropriate time and manner to those with a legitimate reason to receive the communication
Authorization for the disclosure of information
Lack of publication to a third party
Defamation defenses
Intrusion upon one’s right against unwarranted publicity and exposure
Elements:
Duty to not invade the privacy of or disclose confidential medical information of a patient
Breach of duty
Damages from the breach
Invasion of privacy
Patient authorization
Privilege (legitimate interests served by disclosure or other action)
Waiver (patient made facts public or otherwise placed medical condition at issue)
- Courts may make exceptions in cases of
public figures and individuals in
newsworthy situations
News event may be disclosed, but identity of individual is protected
Invasion of privacy defenses
Unauthorized disclosure of a person’s private information
Breach of confidentiality
Obligation to act in another’s best interests due to a special relationship of trust, confidence, or responsibility
Based on fiduciary duty
Same as invasion of privacy
Defenses to breach of confidentiality
To Establish a claim for breach of confidentiality a plaintiff must establish the following 3 elements:
- Existence of a duty to not disclose health information
- Breach of the duty
- Damages
Improper disclosure caused emotional harm or injury
Defendant negligently, recklessly, or intentionally engaged in “extreme and outrageous conduct”
Required to prove:
Defendant should have realized that his conduct involved an unreasonable risk of causing the distress
From the facts known, defendant should have realized that the distress might result in illness or bodily harm
Infliction of emotional distress
Improper disclosure may be analyzed through simple negligence inquiry
Negligence
Exist in some states to support wrongful disclosure actions
Malpractice statutes
Can also result via HIPAA and other federal and state privacy laws
Liability for improper disclosure
Protects certain persons or groups from tort
- Is not based on lack of wrongdoing
- Is based on status or position of defendant
- Limited Governmental Immunity
- Good Samaritan statutes
Immunity
Are statutory enactments that place time limits on certain claims
Purpose:
Allows injured person reasonable time to bring an action for recovery
Allows claims to be resolved while evidence is available and fresh
Period Begins To Run:
When the act or omission is complete
Time of last exposure for ongoing injury
Statute of Limitations
Period of limitation may be \_\_\_\_ (suspended) for reasons such as: Injury reasonably not discovered Injured individual dies; executor sues Removal of individual’s disability Tortfeasor concealed wrongdoing Minor reaches age of majority
Tolled
Maximum time in which a lawsuit can be brought
Statute of repose
Focuses on agreement between parties and enforcement of those agreements
Contract Law
Focuses on negligence or intentional wrongs committed
Tort law
A basis for medical malpractice or business/commercial conflicts
Negligence does not factor into contract law
Contracts vs. Torts
Wrongdoing in healthcare context generally leads to civil liability
Criminal penalties in healthcare can relate to many areas including violations of
HIPAA Privacy Rule
Antitrust
Healthcare fraud
Criminal Liability in Healthcare
Medical malpractice insurance (to protect professionals against medical malpractice lawsuits) at times experiences unsustainable premium increases
Medical malpractice crisis
Medical Malpractice Issues
are enacted to control costs and perceived injustices associated with tort claims Types of tort reform measures Caps on noneconomic and punitive damages Affidavits of merit Limits on attorney contingency fees Collateral source payment Structured settlements Limits on statute of limitations periods Joint and several liability No-fault systems
Tort Reform Measures
