Legal Aspects Hours 1-3 Flashcards

Question

Medical malpractice in two parts - what are they

Answer 1

Lawsuit terms and elements Lawsuit procedure

Answer 2

A civil lawsuit is brought based upon a cause of action A cause of action is defined as a factual situation that entitles one person to obtain remedy in court from another person

Answer 3

Deals with an attempt to compensate a victim monetarily for losses that should or could have been prevented

Answer 4

A civil wrong (other than breach of contract) for which a remedy may be obtained in court in the form of damages or injunction

Answer 5

One who commits a tort

Answer 6

A tort committed by failure to observe the standard of care required by the law under a set of circumstances

Answer 7

A tort committed by someone acting with general or specific intent

Answer 8

The most common tort a PT will face is a claim of negligence which in some states is called medical malpractice medical malpractice = civil law Medical professional's failure to exercise the degree of care and skill that a person of the same medical specialty would use under similar circumstances

Answer 9

To prove a civil cause of action To prevail in court, the person bringing the cause of action must prove his case by the applicable standard of proof

Answer 10

Standard of proof for civil cases - you only need to be after like 50% (so 51% sure would be fine) - Preponderance of the evidence - the "more likely than not" standard Standard of proof for criminal law - much higher standard of proof - has be beyond a reasonable doubt

Answer 11

Each element of a cause of action must be proven by a preponderance of the evidence

Answer 12

Jury or judge

Answer 13

DUTY of care BREACH of duty CAUSATION DAMAGES - Compensatory, Punitive EACH ELEMENT MUST BE PROVEN!

Answer 14

Establishing the PT/pt relationship The legal basis for the PT/Patient relationship rests in contract law and common law

Answer 15

A contract is an agreement to do or not to do a particular thing in exchange for something PT/pt relationship are usually created by an implied contract concept Law, as a matter of reason and justice, infers the contract by the conduct of the PT

Answer 16

The PTs actions will be the determining factor in the courts decision Is the PT providing treatment?

Answer 17

A PT has no duty to provide medical care However, once a PT accepts a pt and agrees to provide medical care, he or she creates a legal relationship that is no different from signing a contract with that patient

Answer 18

Unless the law authorizes the PT to break the implied contract by withdrawing from the PT/pt relationship, he or she is obligated to appropriately treat the patient

Answer 19

A PT terminates the PT/pt relationship without giving the pt advance notice sufficient to enable the pt to find another provider AND where th ept is in need of further therapy This is an intentional tort for which cause of action is possible against the PT

Answer 20

Several states have laws that protect persons who provide assistance to a stranger despite no pre-existing duty to do so PTs do NOT have a duty to treat every pt - however, once the duty is established, responsibilities continue on until termination

Answer 21

Pts condition doesn't warrant further care Both parties agreed to end relationship Pt discharges himself Pt fails to follow directions Pt threatens to sue Pt fails to pay for services Relationship ends as a function of pre arranged contractual agreement or by statute

Answer 22

Provide reasonable notice of intent to terminate Stabilize the pt (if warranted) Obtain assurance that the pt understands the need for additional PT services Timely and complete documentation provides evidence that PROPER measures were taken!!!

Answer 23

Failure of the PT to meet the prevailing standard of care for a PT professional (can be an act or omission)

Answer 24

Local - PT licensure laws, Internal policies and procedures of the SNF National - Guide to PT practice, APTA code of ethics, APTA center for integrity in practice

Answer 25

The PT act or omission is the legal pr proximate cause of the damages being alleged The proximate cause of the damages sustained

Answer 26

Asking who, what, when, where, why, how Identify the event Identify a result Was the result cause by the event NOTE - Defense consideration - could there by other intervening events or non events that contributed to the cause

Answer 27

Compensating the proven loss or injury The amount awarded to a complainant to compensate for a proven injury or loss

Answer 28

Lost wages (past and future) Lost profits Past and future medical expenses

Answer 29

Pain and suffering Loss of consortium Disfigurement Mental anguish and loss of enjoyment of life

Answer 30

Aimed to punish the offender and send message to others - like the defendant - to deter future negligent bx

Answer 31

Was there a harm to someone or something What was the harm Can the harm be calculated into monetary loss or punitive monetary penalty assigned to the person.entity which caused the harm

Answer 32

No malpractice occurred at all Contributory fault/assumption of risk Waiver release Statute of limitation has run (Iowa claims must be filled within 2 years of reasonable discovery of the act resulting in injury - all actions though have to be filled within 6 yrs of the wrongful act or omission) LACK OF INTENT (to hurt someone) IS NOT A DEFENSE TO MALPRACTICE!!!

Answer 33

Person bringing the lawsuit

Answer 34

person/entity names as the alleged wrongdoer

Answer 35

A partys right to make a legal claim or seek judicial enforcement of a duty or right If a court dismisses a case for lack of standing it means the merit of the case is not even considered by the court

Answer 36

The initial pleading by the plantiff that starts a civil action and states the basis for the claim and demand for relief from the court NOT part of the pre trial discover process

Answer 37

the defendants response addressing the merits of the plantiffs case (usually a denial) NOT part of the pre trial discover process

Answer 38

apply to both sides to assure a fair and orderly process is followed

Answer 39

Do NOT ignore a complaint sent to you Represents launch of legal claim against you You will likely need legal assistance to respond Time sensitive Opportunity to provide initial answers to the statements/allegations made Following answer by you, case development begins through process of "discovery'"

Answer 40

A pre trial process of permitting both sides to gather info that could lead to evidence for later use 1 REQUEST FOR DOCUMENTATION 2 INTERROGATORIES 3 DEPOSITIONS NOTE - protection of privileged documents/info is critical

Answer 41

Question and answer session under oath and recorded by video and/or written transcript Plaintiff, Defendant(s), Experts, Witnesses, Other interested parties

Answer 42

The act of discrediting a witness, as by catching the witness in a lie The act of challenging the accuracy or authenticity of evidence

Answer 43

Medical professionals (often of same specialty) used to offer expert testimony in a medical malpractice case to demonstrate if standard of care was breached by PT Info provided is intended to assist the fact finder (judge or jury) in forming an opinion about whether or not a standard of care was breached Experts are often deposed prior to trial

Answer 44

Motion is when a party asks the court for a specific ruling or order Dismiss - pre trial motion made by defendant claiming plaintiff failed to state a claim on which relief can be granted Summary - request for court to enter judgment without trial because there is no genuine issue of fact to decide

Answer 45

``` Opening statements by both sides Presentation of evidence to jury/judge Direct testimony/cross exam Expert testimony Closing arguments by both sides Jury/judge verdict/ruling Post trial appeals ```

Answer 46

Most medical malpractice lawsuits will end up settling out of court - but still requires that both sides file motions and go through discovery through the court process over 90% cases settle outside of court - neither wants to go to court because expensive and time consuming

Answer 47

An agreement to indemnify against negligence claims | Personal decision to carry - protect your assets

Answer 48

Always know what coverage your employer provides for malpractice insurance Understand the risks associated with the setting you work

Answer 49

Best practices that will avoid or defend medical malpractice claims - Always... 1 provide competent care 2 create complete documentation 3 demonstrate character as a professional