The Law of Health Care Malpractice

Question 1

What is health care malpractice?

Answer 1

Potential liability of health care professionals for patient injury

Question 2

Since 1997 there have been how many reported malpractice cases brought against physical therapists?

Answer 2

approximately 30

Question 3

What is the significance of a reported legal case?

Answer 3

One or both parties have disputed the case and it is considered legally significant

Question 4

What percentage of the reported PT malpractice cases resulted in court decisions favoring patient-plaintiff positions?

Answer 4

50%

Question 5

A physical therapist has a __ in 10 chance of being sued by a patient for malpractice

Answer 5

1

Question 6

What percentage of physical therapy claims resulted from the actions of a physical therapy aide or physical therapy assistant?

Answer 6

21%

Question 7

What percentage of malpractice claims against PTs involve “failure to refer” or “failure to diagnose”?

Answer 7

10%

Question 8

Under what circumstances are cases dismissed before there is a formal trial?

Answer 8

• If the health care malpractice plaintiff does not have a material (triable) issue in dispute
• Through summary judgment in which there is insufficient or defective evidence

Question 9

What 2 factors increase a health care professional’s liability exposure?

Answer 9

External and Internal

Question 10

Describe External Factors that increase a health care professional’s liability exposure

Answer 10

• the litigious nature of the American public
• new and complex government
• accreditation agency regulations, and changes in the health care delivery system

Question 11

Describe Internal Factors that increase a health care professional’s liability exposure

Answer 11

• Broadening scope of practice in physical therapy
• Direct access practice
• Trend toward clinical specialty certification
• Delegation of care (but not responsibility) to physical therapy extenders
• Trend toward higher professional liability limits

Question 12

What 5 things does healthcare malpractice include?

Answer 12

1) Professional negligence
2) Breach of contractual promise regarding treatment
3) Intentional conduct of the defendant-provider incident to care of a patient
4) Dangerously defective treatment products or modalities
5) Abnormally dangerous treatment activities

Question 13

When is a PT is liable for Professional Negligence?

Answer 13

When the PT fails to care for patients in ways that comply with the legal standard of care

Question 14

What is the legal standard of care for PT?

Answer 14

What is expected and what is established by the common practice standards in the area and profession

Question 15

Primary vs. Vicarious Liability

Answer 15

Primary liability refers to an obligation for which a party is directly responsible
Vicarious Liability is an indirect legal and financial responsibility for the conduct of another person, such as an employee or clinic volunteer

Question 16

What is negligence?

Answer 16

Conduct by a person who owes another a legal duty, which falls below a standard established by law for the protection of others against unreasonable risk of harm

Question 17

What two things can negligence on the part of the HCP involve?

Answer 17

Act (dislocating a pt’s shoulder while performing PROM)

Omission (failure to monitor a patient’s IV line)

Question 18

What is contributory negligence?

Answer 18

failure on the part of the plaintiff-patient to conform to a reasonable standard imposed by law for self-protection against possible harm

Question 19

What are the 4 required elements of proof in a professional negligence lawsuit?

Answer 19

1) A duty is owed
2) Breach of Duty
3) Causation
4) Damages

Question 20

When does a HCP owe a special “duty” of care to a patient?

Answer 20

When a HCP agrees to accept a patient for care

Question 21

what is negligent abandonment?

Answer 21

• Allegation of patient abandonment for a clinician momentarily turning his or her back on a patient
• Discharging a patient prior to completing treatment because of inability to pay for care

Question 22

Duties are also owed to who?

Answer 22

Third Parties

Question 23

What does breach of duty mean?

Answer 23

the defendant-HCP violated a legal duty by providing substandard care

Question 24

How is the legal standard of care established?

Answer 24

Through expert testimony

Question 25

What are the 3 geographical frames of reference on which expert testimony is based on?

Answer 25

1) Majority rule
2) Minority rule
3) Trend

Question 26

What is majority rule?

Answer 26

Expert practices in a similar community (or the same community) as the defendant-health care professional

Question 27

What is minority rule?

Answer 27

Expert must practice in the exact same community as the defendant-health care professional

Question 28

What is a trend?

Answer 28

Expert practices in any community, state, or nationwide

Question 29

What are clinical practice guidelines?

Answer 29

They offer clinicians a number of acceptable treatment options for particular patient presentations.
They usually inclusive of all reasonable clinical practice options

Question 30

What happens when there are deviations from clinical practice standards?

Answer 30

The legal burden of persuasion is shifted back to the defendant HCP

Question 31

What is causation?

Answer 31

The plaintiff must show (through evidence) that the breach of duty caused injury to them

Question 32

What are the 2 elements of causation?

Answer 32

1) Proximate cause

2) Actual cause

Question 33

What does actual cause mean?

Answer 33

a direct causal link between HCP’s conduct and patient’s alleged injuries
For example: Leaving US head on pt for too long and they get burned

Question 34

What does proximate cause mean?

Answer 34

Defendant-provider had a breach of duty by association of a clinic when something bad happens
For example: Pt slips and falls on wet floor in your clinic

Question 35

In order to warrant the award of monetary charges what must a plaintiff show?

Answer 35

Plaintiff must show that he or she sustained injuries that require the payment of monetary damages to make the plaintiff “whole”

Question 36

What are the 5 things in which the plaintiff can show to the court to receive monetary damages to make them “whole”

Answer 36

1) Costs of medical care
2) Lost wages or salary
3) Expenses related to the injury (special damages)
4) Monetary value of pain and suffering (general damages)
5) Loss of consortium

Question 37

What is consortium?

Answer 37

The ability to interact with family
OR
Loss of ability of sexual relations

Question 38

What is another Tort Bases for Malpractice Liability?

Answer 38

Strict liability without regard for fault

Question 39

What are the 2 types of strict liability?

Answer 39

1) Strict liability for abnormally dangerous activities

2) Strict product liability

Question 40

4 Reasons why ordinary negligence is different from professional negligence?

Answer 40

1) Professionals are held to a higher standard
2) Could involve premises liability
3) HCP standard of care is normally not an issue
4) Lower cost to bring to trial

Question 41

What is vicarious liability?

Answer 41

The circumstances under which an employer bears indirect legal and financial responsibility for the conduct of anther person

Question 42

When is an employer financially liable for the negligent conduct of an employee?

Answer 42

When the employee-wrongdoer is acting within the scope of his or her employment

Question 43

What are the 5 Defenses to Health Care Malpractice Actions?

Answer 43

1) Statutes of limitations
2) Comparative fault (the pt is also responsible aka contributory negligence)
3) Plaintiff is considered to have assumed the risk
4) Immunity
5) Releases from liability (in exchange for monetary settlement)