The Law of Health Care Malpractice Flashcards
What is health care malpractice?
Potential liability of health care professionals for patient injury
Since 1997 there have been how many reported malpractice cases brought against physical therapists?
approximately 30
What is the significance of a reported legal case?
One or both parties have disputed the case and it is considered legally significant
What percentage of the reported PT malpractice cases resulted in court decisions favoring patient-plaintiff positions?
50%
A physical therapist has a __ in 10 chance of being sued by a patient for malpractice
1
What percentage of physical therapy claims resulted from the actions of a physical therapy aide or physical therapy assistant?
21%
What percentage of malpractice claims against PTs involve “failure to refer” or “failure to diagnose”?
10%
Under what circumstances are cases dismissed before there is a formal trial?
- 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
What 2 factors increase a health care professional’s liability exposure?
External and Internal
Describe External Factors that increase a health care professional’s liability exposure
- the litigious nature of the American public
- new and complex government
- accreditation agency regulations, and changes in the health care delivery system
Describe Internal Factors that increase a health care professional’s liability exposure
- 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
What 5 things does healthcare malpractice include?
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
When is a PT is liable for Professional Negligence?
When the PT fails to care for patients in ways that comply with the legal standard of care
What is the legal standard of care for PT?
What is expected and what is established by the common practice standards in the area and profession
Primary vs. Vicarious Liability
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
What is negligence?
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
What two things can negligence on the part of the HCP involve?
Act (dislocating a pt’s shoulder while performing PROM)
Omission (failure to monitor a patient’s IV line)
What is contributory negligence?
failure on the part of the plaintiff-patient to conform to a reasonable standard imposed by law for self-protection against possible harm
What are the 4 required elements of proof in a professional negligence lawsuit?
1) A duty is owed
2) Breach of Duty
3) Causation
4) Damages
When does a HCP owe a special “duty” of care to a patient?
When a HCP agrees to accept a patient for care
what is negligent abandonment?
- 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
Duties are also owed to who?
Third Parties
What does breach of duty mean?
the defendant-HCP violated a legal duty by providing substandard care
How is the legal standard of care established?
Through expert testimony
What are the 3 geographical frames of reference on which expert testimony is based on?
1) Majority rule
2) Minority rule
3) Trend
What is majority rule?
Expert practices in a similar community (or the same community) as the defendant-health care professional
What is minority rule?
Expert must practice in the exact same community as the defendant-health care professional
What is a trend?
Expert practices in any community, state, or nationwide
What are clinical practice guidelines?
They offer clinicians a number of acceptable treatment options for particular patient presentations.
They usually inclusive of all reasonable clinical practice options
What happens when there are deviations from clinical practice standards?
The legal burden of persuasion is shifted back to the defendant HCP
What is causation?
The plaintiff must show (through evidence) that the breach of duty caused injury to them
What are the 2 elements of causation?
1) Proximate cause
2) Actual cause
What does actual cause mean?
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
What does proximate cause mean?
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
In order to warrant the award of monetary charges what must a plaintiff show?
Plaintiff must show that he or she sustained injuries that require the payment of monetary damages to make the plaintiff “whole”
What are the 5 things in which the plaintiff can show to the court to receive monetary damages to make them “whole”
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
What is consortium?
The ability to interact with family
OR
Loss of ability of sexual relations
What is another Tort Bases for Malpractice Liability?
Strict liability without regard for fault
What are the 2 types of strict liability?
1) Strict liability for abnormally dangerous activities
2) Strict product liability
4 Reasons why ordinary negligence is different from professional negligence?
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
What is vicarious liability?
The circumstances under which an employer bears indirect legal and financial responsibility for the conduct of anther person
When is an employer financially liable for the negligent conduct of an employee?
When the employee-wrongdoer is acting within the scope of his or her employment
What are the 5 Defenses to Health Care Malpractice Actions?
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)
