Legal considerations Flashcards
Définitions:
-Tort
-Tort law
-Plaintiff
-Tortfeasor
Tort: civil wrong or violation of duty that causes an injury to another.
Tort law: study of intentional or negligent injury to a person or his or her property. It is designed to provide damages to the plaintiff for the tortfeasor’s misconduct.
Plaintiff: person who files a lawsuit.
Tortfeasor: individual who causes an injury to another person.
What is negligence?
For cases of negligence, the plaintiff must demonstrate that the defendant failed to use the ordinary care of a reasonable person in that situation or circumstance. This standard of care is evaluated according to the general knowledge and skill of the profession, and reflects how a practitionner in a specific field would act in a given situation or circumstance.
What are the characteristics of negligence?
Both the failure to act (omission) as well as improper action (comission) may result in legal action.
What must a plaintiff demonstrate to prove negligence?
- Defendant owed a duty to the plaintiff;
- Defendant breached that duty;
- Breach of the duty was the actual and proximate (or foreseeable) cause of the plaintiff’s injury, and;
- Harm or injury.
What can be some defenses of negligence?
-All elements of ordinary negligence not proven.
-Assumption of risk: the plaintiff’s injury can be attributed to the plaintiff voluntarily exposing him- or herself to an unreasonable risk of harm.
-Contributory/comparative negligence:
–Contributory negligence: if the plaintiff is found to have caused his or her own injury in any way, the lawsuit will fail;
–Comparative negligence: a plaintiff may be partially to blame for their own injuries, but as long as they are not more at fault than the defendant, they can recover some damages minus their percentage of fault.
-Statutory immunity:
–Exlcusion or release from legal liability in certain circumstances (ex: Good Samaritans in emergency situations, not on the job);
–Plaintiff has a certain amount of time to file a lawsuit against a defendant (1-2 years), can give immunity to legal liability.
-Sovereign/government immunity: practitionners employed by a govenment agency may be immune from a lawsuit if they practiced discretionary acts of care within the scope and course of their employment, act in good faith, perform discretionary-decisional acts (involving personal deliberation or judgement as a function of a job).
-Contractual defenses: informed consent and waivers are contractual defenses. Waivers provide evidence that an individual knowingly and voluntarily waives his/her legal right to recover from future harm due to another’s wrongful conduct (waivers only protect against ordinary negligence, not gross negligence).
What is intentional tort and the types of tort?
Any voluntary action intended to cause injury to another.
Types:
-Assault: intentionally creating a resonable fear in a person’s mind of impending bodily harm;
-Battery: unauthorized or unwelcomed physical contact with another person;
-Invasion of privacy: unreasonable disclosure of private facts;
-Defamation: false statement is published (libel) or spoken (slander) about the plaintiff who is a public official, a public figure or a private figure. The plaintiff must prove that the defendant made a statement that was knowingly false or had reckless disregard of whether the statement was true or false.
What is strict liability?
Defendant’s legal responsibility for an injury to a plaintiff without proof of intent or fault by the defendant. The plaintiff only has to prove that the tort occured and that the defendant was responsible.
Stricty liability applies to situations that are considered to be inherently dangerous or that involve a product.
What is product liability?
Area of negligence involving equipment (ex: AED, strength-training equipment, etc.)
Plaintiffs bringing a product liability claim allege that they suffered an injury after using a product that:
1. Did not perform as it was expected to;
2. Was defective in design or;
3. Was defective because of faulty manufacturing.
Plaintiffs have also brought claims when the manufacturer failed to properly warn the user of the potential dangers of using the product.
Express contact vs implied contract:
Express contract: based on words that are oral or written.
Implied contract: based on the conduct/behavior of the parties.
Types of insurance:
General liability: insurance covers property losses or bodily injuries to a third party.
Professional liability (aka errors and omissions insurance): covers the negligent acts, mistakes, or failures to do something by those who have professional knowledge or training.
Property insurance: covers buildings, structures, or the contents thereof when certain natural disasters, theft, or vandalism occur. Typically natural disasters such as floods or earthquakes are excluded from property insurance coverage.
Product liability: applies to injuries that result from the sale or use of products.
Employment practices liability: covers injury to employees caused by wrongful termination, sexual harassment, defamation, breach of the employment contract, and various types of employment discrimination.
Worker’s compensation: covers injuries to employees while performing their duties at the workplace.
Umbrella policy: additional insurance designed to cover anything that exceeds the limits of any other previously mentioned policy.
HIPPAA Privacy Rule:
The Rule requires appropriate safeguards to protect the privacy of protected health information and sets limits and conditions on the uses and disclosures that may be made of such information without an individual’s authorization. The Rule also gives individuals rights over their protected health information, including rights to examine and obtain a copy of their health records, to direct a covered entity to transmit to a third party an electronic copy of their protected health information in an electronic health record, and to request corrections.
The Privacy Rule protects all “individually identifiable health information” held or transmitted by a covered entity or its business associate, in any form or media, whether electronic, paper, or oral. The Privacy Rule calls this information “protected health information (PHI).”
“Individually identifiable health information” is information, including demographic data, that relates to:
-the individual’s past, present or future physical or mental health or condition,
-the provision of health care to the individual, or
-the past, present, or future payment for the provision of health care to the individual,
and that identifies the individual or for which there is a reasonable basis to believe it can be used to identify the individual. Individually identifiable health information includes many common identifiers (e.g., name, address, birth date, Social Security Number).
Access and Uses. For internal uses, a covered entity must develop and implement policies and procedures that restrict access and uses of protected health information based on the specific roles of the members of their workforce. These policies and procedures must identify the persons, or classes of persons, in the workforce who need access to protected health information to carry out their duties, the categories of protected health information to which access is needed, and any conditions under which they need the information to do their jobs.
HIPPAA Security Rule:
The HIPAA Security Rule establishes national standards to protect individuals’ electronic personal health information that is created, received, used, or maintained by a covered entity. The Security Rule requires appropriate administrative, physical and technical safeguards to ensure the confidentiality, integrity, and security of electronic protected health information.
The Security Rule requires covered entities to maintain reasonable and appropriate administrative, technical, and physical safeguards for protecting e-PHI.
Specifically, covered entities must:
- Ensure the confidentiality, integrity, and availability of all e-PHI they create, receive, maintain or transmit;
- Identify and protect against reasonably anticipated threats to the security or integrity of the information;
- Protect against reasonably anticipated, impermissible uses or disclosures; and
- Ensure compliance by their workforce.
Signification HIPAA:
Health Insurance Portability and Accountability Act
HIPPAA Breach Notification Rule:
A breach is, generally, an impermissible use or disclosure under the Privacy Rule that compromises the security or privacy of the protected health information. An impermissible use or disclosure of protected health information is presumed to be a breach unless the covered entity or business associate, as applicable, demonstrates that there is a low probability that the protected health information has been compromised based on a risk assessment of at least the following factors:
- The nature and extent of the protected health information involved, including the types of identifiers and the likelihood of re-identification;
- The unauthorized person who used the protected health information or to whom the disclosure was made;
- Whether the protected health information was actually acquired or viewed; and
- The extent to which the risk to the protected health information has been mitigated.
