Study Guide for Chapters 5 & 6

Question 1

Tortfeasor

Answer 1

the person guilty of committing a tort

Question 2

Release of Tortfeasor

Answer 2

a technical defense that prohibits a lawsuit against the person who caused an injury (the tortfeasor) if he or she was expressly released from further liability in the settlement of a suit.

• If the injured party sues the tortfeasor, settles the case, and then releases the tortfeasor from further liability, the injured party cannot also sue the physician unless the victim expressly reserved that right in the release. If the victim’s settlement with the tortfeasor provided compensation for all medical expenses, the release of tortfeasor is usually an absolute defense.
• Laws governing release of tortfeasor contain many modifiers, which must be applied in individual cases

Question 3

Enterprise risk management (ERM)

Answer 3

Has traditionally been overseen by a specific department within an organization. ERM in health care links risk management and quality improvement with an organization-wide framework, rather than relying on departmental focus. ERM looks at risk management and total value of the organization.

Although organizations differ in how they may implement ERM, risk management and quality improvement become the responsibility of all employees. Risk managers recognize that good communication is not just between provider and patient but also between departments, providers, and patients and may affect the value of the organization. According to ERM principles, good communication reduces risks and may improve outcomes.

Question 4

Quality assurance (QA) AKA Quality improvement (QI)

Answer 4

a program of measures taken by health care providers and practitioners to uphold the quality of patient care

Question 5

Subpoena

Answer 5

a legal document requiring the recipient to appear as a witness in court or to give deposition

Question 6

Subpoena duces tecum

Answer 6

a legal document requiring the recipient to bring certain written records to court to be used as evidence in a lawsuit

Question 7

Admitting privileges

Answer 7

allows medical providers to admit patients to a particular hospital and to personally provide specific medical services at that hospital

Question 8

Credentialing

Answer 8

Credentialing is the process of verifying a health care provider’s credentials. May be done by risk management staff or by other departments within a health care organization. The process may be performed by

-an insurance company before a provider is admitted to the network
-By medical offices prior to granting hospital privileges
-By other groups that routinely employ or contract with health care providers
Credentialing usually consists of the following

1. A provider fills out an application and attaches copies of his or her medical license, proof of malpractice insurance coverage, and other requested credentials
2. The listed sources are asked to verify the information
3. Medicare and Medicaid sanctions and malpractice history are checked via the National Practitioner Data Bank
4. The findings are presented to a credentialing committee
5. A peer review process completes the credentialing procedure

Question 9

Claims-made Insurance

Medical malpractice insurance

Answer 9

a type of liability insurance that covers the insured only those claims made (not for any injury occurring) while the policy is in force.

With this kind of insurance, the determining factor is when the claim is made, not when the injury occurs. For example, a policy in force during a previous year would cover only those claims made during that year.

Question 10

Occurrence Insurance

Medical malpractice insurance

Answer 10

a type of liability insurance that covers the insured for any claims arising from an incident that occurred or is alleged to have occurred during the time the policy is in force, regardless of when the claim is made

For example: suppose an alleged incident of negligence by a physician occurred in September 2013, while the physician’s occurrence insurance policy was in effect with XYZ insurance company. If a patient files a claim against the physician in January 2016 , after the policy period has passed, the physician is covered under the terms of the occurrence insurance policy.

Question 11

Tail Coverage

Medical malpractice insurance

Answer 11

an insurance coverage option available for health care practitioners. When a claims- made policy is discontinued, it extends coverage for malpractice claims alleged to have occurred during those dates that claims-made coverage was in effect

Question 12

Prior acts insurance coverage

Medical malpractice insurance

Answer 12

a supplement to a claims-made insurance policy that can be purchased from a new carrier when health care practitioners change carriers

Question 13

Self-Insurance Coverage

Medical malpractice insurance

Answer 13

an insurance coverage option whereby insured subscribers contribute to a trust fund to be used in paying potential damage awards

Question 14

Claims made coverage

Answer 14

a type of liability insurance that covers the insured only those claims made (not for any injury occurring) while the policy is in force.

Question 15

Good Samaritan

Answer 15

state laws protecting physicians and sometimes other health care practitioners and laypersons from charges of negligence or abandonment if they stop to help the victim of an accident or other emergency

Question 16

Res judicata

Answer 16

“the thing has been decided,” Legal principle that a claim cannot be retried between the same parties if it has already been legally resolved.

Question 17

What are the 4 C’s in Medical Malpractice prevention?

Answer 17

Caring
Communication
Competence
Charting

Question 18

Caring

Answer 18

There are two important benefits to showing your patients that you care. First is improvement in their medical condition. A secondary benefit is the decreased likelihood that your patients would feel the need to sue if treatment had unsatisfactory results, or if adverse events occur. Of course, it is important that you be sincere in your concern because others often quickly sense insincerity and may distrust you.

-Avoid destructive and unethical criticism of the work of other physicians and/or other health care practitioners. Do not discuss with a patient his or her former physician. Listen carefully to each patient’s complains and remarks about dissatisfaction with treatment, and see that comment reach the treating physician

Question 19

Communication

Answer 19

if you communicate clearly and ask for confirmation that you have been understood, you will be more likely to earn your patients and your colleagues trust and respect. If your duties include taking telephone messages, relate them accurately.

-Offer to make appointments when appropriate. Remember that when health care practitioners other than physicians, or in some instance’s physician assistance, diagnose or prescribe. they may be charged with practicing medicine without a license. When adverse events occur, use correct procedures in reporting the event, and never avoid or ignore any patients involved.

Question 20

Competence

Answer 20

know your professional area well, including your limitations. Follow standards of care and appropriate procedures for medical practitioners in similar practices and in similar communities. Avoid any action that you are not fully trained or equipped to handle.

• maintain and constantly update your knowledge and skills
• consult with other health care practitioners appropriately, early, and often
• know the requirements of good medical practice in caring for each patient
• if you prepare or administer medications; check each drug three times; once when taking it from the supply cabinet, again when preparing the dosage, and third time when returning the container to the shelf. All outdated medications should be discarded and promptly replaced. Prescription blanks should not be left on desktops or work areas.
• stay informed about general medical and scientific progress by reading professional journals, attending seminars, and professional association meetings, and fulfilling continuing study requirements

Question 21

Charting

Answer 21

documentation is proof. For legal purposes, if it isn’t in writing and explained completely, and accurately, it wasn’t done. Medical records should include X-rays test results, progress notes, and anything else related to the patients’ medical treatment.

• document as if the patient will read his or her medical record. Never write something you would not want the patient to see

Question 22

Risk management

Answer 22

the taking of steps to minimize danger, hazard, and liability

Question 23

Negligence

Answer 23

an unintentional tort alleged when one may have performed or failed to perform an act that a reasonable person would not or would have done in similar circumstances

Question 24

contributory negligence

Answer 24

an affirmative defense that alleges that the plaintiff, through a lack of care, caused or contributed to his or her own injury

Question 25

comparative negligence

Answer 25

an affirmative defense claimed by the defendant alleging that the plaintiff contributed to the injury by a certain degree

Question 26

Duty of care

Answer 26

the legal obligation of health care workers to patients and sometime nonpatients

Question 27

Standard of care

Answer 27

the level of performance expected of a health care practitioner in carrying and his or her professional duties

Question 28

Stages of a lawsuit

Answer 28

1. A patient feels he or she has been injured
2. The patient seeks the advice of an attorney
3. If the attorney believes the case has merit, he or she then requests copies of the patient’s medical records. The Attorney reviews the medical records and the appropriate standard of care to ascertain merits of the case. In some states, before proceeding to a lawsuit, the attorney must obtain an expert witness report stating that the standard of care has been violated. An affidavit to the effect must then be submitted. An affidavit is a sworn statement in writing made under oath. It may also be a declaration before an authorized officer of the court.
   (Pleading Phase)
4. The plaintiff (injured patient’s) attorney files a complaint with the clerk of the court. In this document, the plaintiff states his or her version of the situation and the amount of money sought from the defendant (the practitioner being sued) for the plaintiff’s injury.
5. A summons is issued by the clerk of the court and is delivered with a copy of the complaint to the defendant, directing him or her to respond to the charges. If the defendant does not respond within a specified time limit, he or she can lose the case by default.
6. The defendant’s attorney files an answer to the summons, and a copy of it is sent to the plaintiff. In this document, the defendant presents his or her version of the case, either admitting or denying the charges. The defendant may also file a counterclaim or a cross-complaint.
7. If a cross-complaint is made, the plaintiff files a reply
   (Interrogatory or Pretrial Discovery Phase)
8. The court sets a trial date
9. Pretrial motions may be made and decided. For example,, the defendant may request that the lawsuit be dismissed, the plaintiff may amend the original complaint, or either side may request a change of venue (ask that the trial be held in another place).
10. Discovery procedures may be used to uncover evidence that will support the charges when the case comes to court. A court order called a subpoena may be issued commanding the presence of the physician or medical facility employee in court or requiring that a deposition be taken. A deposition is sworn testimony given and recorded outside the courtroom during the pretrial phase of a case.
    An interrogatory may be requested instead of or in addition to a deposition. This is a written set of questions requiring written answers from a plaintiff or defendant under oath. The subpoena commanding a witness to appear in the court and to being certain medical records is called a subpoena duces tecum. Failure to obey a subpoena may result in the contempt of court charges. Contempt of court is willful disobedience to or open disrespect of a court, judge, or legislative body. It is punishable by fines or imprisonment.
11. A pretrial conference may be called by the judge scheduled to hear the case. During this conference, the judge discusses the issues in the case with opposing attorneys This helps avoid surprises and delays after the trail starts and may lead to an out of court settlement (Note: at any point after the compliant is filed before the case comes to trail, an out of court settlement may be reached.)
    (Trial Phase)
12. The jury is selected (if one is to be used) and the trial begins
13. Opening statements are made by the lawyers for the plaintiff and the defendant, summarizing what each will prove during the trial.
14. Witnesses are called to testify for both sides. They may be cross-examined by opposing attorneys.
15. Each attorney makes closing arguments than the evidence presented supports his or her version of the case. No new evidence may be presented during summation
16. The judge gives instructions to the jury (if one is chosen) and the jury retires to deliberate
17. The jury reaches a verdict
18. The final judgement is handed down by the court. The judge bases his or her decision for judgement on the jury’s verdict.
19. Post trial motions may be filed
20. An appeal may be made for the case to be reviewed by a higher court if the evidence indicates that errors may have been made or if there was injustice or impropriety in the trial court proceedings. During an appeal, the judge has the option of affirming, reversing, or modifying a decision. A judgment is final only when all options for appeal have been exercised.

Question 29

Employer liability (also listed with// kind of ties in with the Medical Malpractice Insurance)

Liability Insurance

Answer 29

contract coverage for potential damages incurred as a result of a negligent act. For example, if a medical professional liability insurance policy covers an insured physician up to 10 Million, in the event that he or she loses a malpractice suit and must pay damages, the insurance company will not pay more than the amount.