Theories of Liability Flashcards
Most common claims against optometrists (4)
malpractice, products liability, informed consent, intentional offenses are rare
another name for malpractice
Medical Negligence
T/F. Medical Negligence is a Tort Law
True. Medical negligence is a civil wrong for which a court will provide a remedy in the form of an action of damages. Tort law- duty to not act negliently, recklessly, intentionally wrongfully
What is the most common tort involved in liability claims against optometrists?
Negligence
Medical Negligence is a conduct
conduct that falls belowa standard established for the protection of others against unreasonable risk of harm
What is the the key error in medical negligence?
failure to act reasonably
Courts have defined negligence as
forgetting to do something or doing something in an inappropiate manner or failure to use his best judgement, law holds him liable for injury
in order for a patient to prove negligence, what 4 elements must be proven?
- Doctor-patient relationship 2. Breach of the standard of care 3. Injury 4. Proximate cause
who is the plantiff in medical negligence case?
the patient (the person who is bringing the lawsuit)
What must the patient show in proving negligence in a court case?
preponderance of the evidence (more believe testimony), This means that the jury will need to be convinced, based on all of the evidence, that there is a greater than 50% chance that defendant caused the harm alleged in the lawsuit.
The second element of proving negligence is Doctor-PT relationship.
True. This obligates the doctor to act reasonably
Define reasonably.
conform to the conduct expected of a doctor under the circumstances
to act Reasonably is often referred to as
often referred to as the “Standard of Care”
What is required to establish what a reasonable doctor would have done under the same or similar circumstance
an expert testimony
T/F Psychological damage is enough for proving medical negiglence
False. Psychological damage is not enough. There must be actual physical injury suffered by the patient.
T/F The fact that you as the optometrist made a mistake or breached the standard of care means you will be guilty of malpractice.
F. The pt must have suffered actual physical injury…like loss of acuity or field of vision
the 4th element in proving medical negligence is ____.
proximate cause
Think ____&_____ for proximate cause.
cause and effect
Proximate Cause says there must be
a legal link (“proximate cause”) between what the doctor did (or didn’t do) and the injury–often called “causation”
What is required to establish cause and effect between conduct and injury?
Expert testimony
What is the most frequent claim against Ods?
failure to diagnose glaucoma
what is the most expensive liability claim against Ods?
failure to diagnose tumor
Pediatric claims are about what percentage of liability claims?
20%
what are the leading causes of liability claims against Ods?
failure to diagnose posterior segment disease, failure to diagnose anterior segment disease, injuries to spectacles or contact lens
Some of the liability claims involving contact lens are ?
complications of corneal abrasions, misdiagnosis of intraocular disease, failure to obtain informed consent (monovision)
Some of the liability claims involving spectacles are ?
failure to Rx polycarb lenses, defective sport frame design
What are the top two misdiagnosis of Intra-Ocular Disease?
Glaucoma and retinal detachment
Other misdiagnosis of Intra-ocular diseases are
tumors (brain tumors and intraocular tumors), diabetic retinopathy, termporal arteritis, histoplasmosis, toxoplasmosis
Misdiagnosis of Anterior Seg
claims involving corneal diseases, ocular foregin bodies, conjunctivial malignant melanoma iritis, co-management with surgeries, injuries from ophthalmic drugs such as adverse effects of diagnostic drugs (angle closure), misalignments of binocular vision anomalies.
Most common claims against OD practices
poor record keeping, forgetting informed consent documentation, lack of pupil dilation, misdiagnosis and improper client termination/referral.
the most important way to protect yourself is
documentation
What should all charts contain
visual acuities, warnings, findings, recall and referrals,
T/F it’s important to look at your documentation objectively
true .
t/f you are responsible for anything they do or say
true . You are only as good as your weakest employee. Take an active role in training staff and periodically check and double check what they are doing and re-train
T/F. Your glaucoma pt, doesn’t show for their f/u appoinment. This means you are off the hook because you made the appointment .
False. Making an appointment is not enough! For no shows, you must follow up. You must call or send a letter, just because they didn’t show doesn’t free you from liability
Are there any defenses against claims?
yes, there are several defenses to a malpractice claim that can be asserted by a doctor.
The most important defenses against a claim are:
Statutes of limitation (over 60 days?), contributory/comparative negligence
Explain statutes of limitation
state statutes of limitation establishs the period of time within which a case must be brought
What is the limit for a negligence claim?
1 or 2 years from the event (IMPORTANT) but may be different for wrongful death actions or for claims brought by minors
what can stop the running of the statute of limitation?
fraud by the doctor
Define contributory negligence
when the patient himself is responsible for the problem. It is a complete defense to an action based upon negligence.
T/F. If a contibutory negligence is proven, it can bar the liabilty claim completely.
TRUE
Explain Comparative Negligence
a defense claim that allows a jurt to apportion fault, so that the concurrent negligence commited bu the pt is used to reduce the size of the award to the patient. This defense does NOT bar it all together. Its a law in almost all states.
Sudden emergency
Under that doctrine, a person faced with a sudden emergency calling for quick action is not held to the same correctness of judgment and action that would apply if there was time and for full thought and preparation. in order to be applicable . the sudden emergency must not be the fult of the one seeking to invoke the doctrine.
quick action is not held to the same correctness of judgment and action that
would apply if he had the time and opportunity to consider fully and choose
the best means of escaping peril or preventing injury. For the sudden
emergency doctrine to be applicable, there must be a sudden emergency and
the sudden emergency must not be the fault of the one seeking to invoke the
doctrine.
Examples of Tort claims
medical neglience, wantonnes, intention or willful conduct, negligent hiring and retention
Explain Wantonnes
Wantonness has been defined by the courts as the conscious doing of
some act or the omission of some duty, while knowing of the
existing conditions and being conscious that, from doing or
omitting to do an act, injury will likely or probably result.
t/F . To prove wantonness it is essential to prove that the defendant intendded to injure the plantiff
False.
T/F.Evidence that someone forgot to do something will not support a wantonness claim.
TRUE
Explain when intentional or willful conduct is committed
person commits willful or intentional injury if he has a knowledge of the
danger accompanied by a design or purpose to inflict injury, whether the
act be one of commission or omission.malice implies an evil intent.
Neglent Hiring and retention
the doctor is held responsible for his employess incompetency when notice or knowledge whther actual or presumed, of such unfitness has been brought to him.
Product liability claims involve
optometrists who sell defective products
Viscarious liability
claims are brought to hold an
optometrist liable for the negligence of a partner
or employee. A type of product liability.
When is product liability imposed ?
imposed if a consumer is using a
product in a reasonably foreseeable and intended
manner and is injured by the product, if it can be
shown that: product was defective, seller is engaged in the business of selling the product, products reaches the consumer w/out substantial change in the condition in which it was sold.
Why are optomtrists named as defandants in product liability cases?
because they are the “sellers” of
ophthalmic products.
the most likely opthalmic products to result in a product liability claim are
phthalmic lenses,
safety eyewear, athletic frames, and ophthalmic
drugs
Vicarious liability can make you legally responsible for the acts of another because
because you are in a legal
relationship with the actual wrongdoer. The two
most important legal relationships in this regard are:
• principal and agent (partnership)
• master and servant (employer and employee)
Key issue in employer-employee claims is often whether when employee was acting in the
line and scope of the employee’s duties” at the
time the injury occurred.
The most significant issue in business-related
vicarious liability claims is
the type of business organization. In a general partnership, the partners are liable
for one another. In a limited liability company
(LLC) or professional association or corporation
(PA or PC), they are not.
Post-surgical care by an optometrist in lieu of the
surgeon results in a “joint venture”, in which the
surgeon may be held liable for negligence
committed by the optometrist.
true
Professional liability insurance may be purchased to manage the risk of malpractice claims.
True. It will cover lawyer fees, costs of litigation, settlement, up to the policy limits, judgements.
The best professional liability insurance policies require the doctor’s
approval before a claim can be settled.
