Malpractice

Question 1

What is malpractice?

Answer 1

Malpractice is the liability of healthcare providers for injury of a client. It is a civil legal action taken by a patient against a health care organization or provider for an injury that occurred during the delivery of services.

Question 2

What are some factors that may increase you risk of a malpractice allegation?

Answer 2

1. out litigious society
2. the change in health care delivery to a business relationship focused on cost containment
3. expanding scopes of practice, specialty certifications, a trend toward post baccalaureate entry level degrees
4. cross-training of professionals, delegation of care (but not responsibility)

Question 3

What are 5 legal bases for liability in a malpractice lawsuit?

Answer 3

1. Negligence: what most malpractice suits are about
2. Breach of treatment related contractural promise
3. intentional misconduct
4. strict liability from dangerously defective equipment or products or activities

Question 4

What is the definition of negligence?

Answer 4

The definition of negligence is carelessness subject to legal action. …“conduct by a person who owes another a legal duty that falls below a standard established by law for protection of others against reasonable risk of harm”

• the large majority of malpractice actions are based on accusations of negligence.
• negligence can also be due to an act of omission (ex: a pt falling b/c you did not put a gait belt on them)

Question 5

What is the definition of substandard care? (WILL be on test?)

Answer 5

Substandard care is care that fails to comply with legal and ethical standard–fails to meet at least minimally acceptable standard of care for a defendant-provider’s specific discipline.

Question 6

What is vicarious liability?

Answer 6

Vicarious liability is indirect legal and financial responsibility for the conduct of another person, such as an employer for an employee or a volunteer.
-Liability for the actions of a person whom you are supervising (a COTA, aide, or student)

Question 7

How is a standard of care established?

Answer 7

1. the testimony of an expert witness, usually a person of the same discipline
2. authoritative texts
3. peer-reviewed publications
4. reference to practice guidelines, and protocols

Question 8

What are 4 elements of proof required in a negligence suit? *WILL be on test

Answer 8

1. a duty owed by the healthcare practitioner
2. a duty violated
3. causation: the defendant’s negligence caused the pt’s injury
4. monetary damages are needed to make the pt “whole” again. -damages

Question 9

Explain duty.

Answer 9

Duty is when the practitioner owes a special duty to a patient because the accepted the patient for care.

Question 10

What reason is it appropriate to decline to treat a patient?

Answer 10

When the treatment is beyond your scope of practice or competence.

Question 11

For what reason is it illegal to decline to treat a patient?

Answer 11

Discrimination due to national origin, race, religion, gender, age, or disability.

Question 12

What is the anti-dumping law?

Answer 12

All the receive federal Medicare funds must do medical screening exams for all pts who come to the ER and to stabilize them before transferring them to another facility regardless of their ability to pay.
-EMTALA: Emergency Medical Treatment and Active Labor Act

Question 13

What is considered patient abandonment?

Answer 13

Improper termination of a patient/therapist relationships
-Examples: Turning your back on a pt. and he falls; discharging a pt before he reaches rehab goals bc his 3rd party funding runs out; irreconcilable personality conflict

Question 14

What is a health care provider’s duty to third parties?

Answer 14

Came about as a result of Tarasoff vs. Reagents of the University of California.
A health care provider has a duty to warn that party of danger of bodily harm from pts under their care.

Question 15

Describe Breach of Duty

Answer 15

Breach of Duty occurs when a practitioner violates a duty to the pt by providing substandard care.
-Duty= what is “considered acceptable by an ordinary, reasonable professional peer of the defendant, acting under the same or similar circumstances”
It depends on what is permissible in your profession’s practice act.
-AOTA standards of practice and practice guidelines, professional journals and texts are considered.

Question 16

Explain an Expert Witness.

Answer 16

An expert witness is a standard of care determined by asking an expert witness from the same discipline as the defendant.

• To be legally competent, the expert witness must: a. Have in depth knowledge about the treatment, b. be familiar with the standard of care.
• testimony is care that is minimally acceptable in the same locality or held to a state-wide or nation-wide comparison

Question 17

What are advantage of Practice guidelines?

Answer 17

a. standardize treatment processes
b. record professional judgement on the validity of treatment options
c. possibly reduces malpractice claims

Question 18

What are the disadvantages of Practice guidelines?

Answer 18

a. limits treatment options
b. creates a “cookbook” approach to treatment
c. In malpractice cases, defendants must justify treatment not included in the guidelines.

Question 19

Explain Causation.

Answer 19

Causation is when the plantiff must show that the injury was “reasonably forseeable”
-The actual causation is: sine que non: the injury would not have occurred “but for” the defendant’s substandard care.

Question 20

Explain Damages.

Answer 20

A plantiff must show that a payment of money is required to make him “whole” such as:

a. additional medical costs
b. economic loss (ie wages, ability to work)
c. loss of chance of recovery
d. general damages: pain and suffering

Question 21

What are ways of conflict resolution?

Answer 21

1. civil litigation
2. adjudication: dispute is settled by administrative agencies
3. arbitration: dispute is settled by a third person or panel of experts
4. meditation: a mediator attempts to persuade parties to settle their differences

Question 22

What is strict liability?

Answer 22

Strict liability is when a health care provider is responsible for unusually dangerous activities that injure the pt (rarely occurs b/c of the industry’s emphasis on pt safety)

Question 23

What is strict product liability?

Answer 23

the responsibility of a company for selling dangerously defective products that injure users.

Question 24

What is ordinary negligence?

Answer 24

Anyone owing a duty of care that can be liable for this. It does not involve professional knowledge or skill

Question 25

What is professional negligence?

Answer 25

involves a higher level of knowledge gained through formal education.

Question 26

What are the 3 types of people a duty is owed to in premises liability (responsible for injuries that occur on the land of an ownder or occupant)

Answer 26

a. invitees: highest duty to pts/ families. Reasonable steps must be taken to safeguard against harm including regular inspections for hazards
b. Licensees: vendors, delivery people
c. Trespassers: lowest duty owed, but warning still must be posted about possible harm or death

Question 27

What falls under non-fault based vicarious/corporate liability?

Answer 27

a. an employer earns a profit from employees

b. in a better position to bear financial responsibility as a cost of doing business than the pt/victim

Question 28

What falls under corporate liability for hospitals?

Answer 28

a. liability for screening and hiring employees
b. monitoring and safety
c. quality management programs

Question 29

What is the National Practitioner Data Bank?

Answer 29

A list of health care providers who have had adverse credentialing or licensing actions against them or have had to make malpractice payments: no public access

Question 30

What is spoiliation?

Answer 30

spoiliation is intentional destruction or changing as entry to conceal its original meaning

Question 31

what are 7 purposes of documentation?

Answer 31

1. facilitate effective intervnetion
2. communicate relevant information to other healthcare practitioners
3. to provide a basis for treatment and continuity of care
4. for quality improvement purposes
5. to justify reimbursement
6. as a resource for research and education
7. as a business and legal record

Question 32

What does EMR stand for?

Answer 32

Electronic Medical Records

Question 33

What is an Incident Report?

Answer 33

An incident report is special documentation of a potentially compensable adverse event- someone is injured or states they are dissatisfied with care

Question 34

What are the purposes of an incident report?

Answer 34

1. to make management aware of safety hazards (quality improvement)
2. to record facts to aid in preventing liability

Question 35

What are defenses in malpractice?

Answer 35

1. Technical/Procedural: statues of limitation

2. Substantive: comparative fault

Question 36

Is assumption of risk applicable as a defense in malpractice?

Answer 36

no. the best rule to follow is to assume the pt is assuming no risk in the course of receiving health care treatment.

Question 37

Are exculpatory releases (taking responsibility away) applicable in health care?

Answer 37

no

Question 38

What are the 2 types of immunity?

Answer 38

1. Sovereign immunity

2. Charitable immunity

Question 39

What is sovereign immunity?

Answer 39

Government entities cannot be sued or made to pay monetary damages

Question 40

What is charitable immunity?

Answer 40

religious based non-profit organizations who provided indigent care use to be immune from legal actions