Presentation Transcript

1. Negligence, Malpractice and Other Torts

   Chapter 6
2. Torts “Tort” comes from the French word which means wrong. Tort laws includes law suits for wrong doing, whether intentional, negligible or accidental. Tort law is the largest segment of the law and includes civil and criminal laws. It is based ion the harm, damages and redress principles.
3. Healthcare Industry and Tort law The basic idea is that healthcare workers are trained in a variety of skills and have standard of performance that they need to maintain. Whether the healthcare worker is a nurse, doctor, surgeon or technician, each area requires a minimum of knowledge and skill.
4. Health Industry and Tort law However, without malice, healthcare workers can make mistakes, either because they are distracted by personal problems or simply because they are human. When mistakes occur and a patient is injured as a result of it, he or she has a right to receive compensation for her damages.
5. Torts Torts can be categorized by actions that cause the harm or by the type of harm that has been committed.
6. Types of Harm The person who causes the harms is called a tortfeaser 1) Harm to a person’s body 2) Harm to a person’s personality 3) Harm to a person’s property
7. Harm of a Person’s Property Trespass to Land: The intentional or intrusion or invasion of another person’s property (land) causing damage. In the law, land, including homes, are referred to real property or simply property. Belongings are referred to chattels. Trespass to land is very unlikely in the healthcare industry or in public health. Note that to breach this law you not only have to be on someone else’s property but also you have to cause some kind of damage to the property.
8. Harm to a Person’s Property Trespass to Chattels: The intentional interference with another person’s chattels (personal property). Losing a patients personal property in a hospital setting might be an example of trespassing to chattels.
9. Harm to a Person’s Property Conversion: The intentional taking of another person’s chattel (personal property) and making it your own. The criminal act (in which you can go to jail) is theft.
10. Harms to personality 1)Defamation (libel and slander) 2) Invasion of Privacy
11. Harms to Body 1) Assault 2) Battery 3) False Imprisonment 4) Negligence
12. False Imprisonment False Imprisonment: The intentional confinement of a person who is aware of their confinement. A person does not have to be literally in a prison but only in a physically confined or restricting state. Legal elements required: 1) Intentional 2) Confinement 3) Of a person 4) Aware of confinement
13. False Imprisonment In public health false imprisonment is most relevant in cases having to do with quarantines. Also note that false imprisonment requires that the patient be conscious of his or her imprisonment/confinement. If a patient is not aware of his or her confinement, thenit would not constitute false imprisonment.
14. Negligence Negligence is a breach of duty that causes damages. Legal elements 1) Duty 2) Beach 3) Damages 4) Causation
15. Duty There are many kinds of duties. There are moral duties, religious duties, professional duties, and legal duties (to name a few) We are ONLY interested here with legal duty. To determine whether a Legal Duty exist is the obligation of the judiciary. Does a Legal Duty Exist?
16. Breach What did the person do, or not do that they had a legal duty to not do, or do? In some cases the reasonable person standard needs to be used: What would a reasonable and prudent person do in the same, or similar, situation?
17. Types of Negligence Malfeasance: Focuses on the act itself as opposed as to how the act was done. For instance, practicing without a license. Misfeasance: Focuses on the quality or the way the act was done. The act was not performed the way it is supposed to be performed. Nonfeasance: Failure to perform the act.
18. Damages What harms did the person suffer? If there person did not suffer any harm or injuries (physical, emotional or financial) then there is no case for a law suit.
19. Damages 1) Physical 2) Emotional 3) Financial
20. Physical There are situations in which the physical damage is obvious, such as if one loses sight from one’s eye. However, in other cases, especially dealing with pain and suffering the damages are difficult to quantify ($).
21. Emotional This does not simply concern a case in one is deeply hurt and feels awful. One needs to demonstrates that the harm is so severe that one requires psychiatric help.
22. Financial This is much easier to quantify than emotional or physical damages. This might include loss of wages, loss of property, etc.
23. Categories of Damages 1) Compensatory 2) Consequential 3) Punitive
24. Compensatory Damages Here the plaintiff is asking to be recompensed or reimbursed for the monies he or she has spend in medical bills, loss of properties, etc..
25. Consequential Damages Consequential damages are related to expenses the plaintiff will incur indirectly but as a consequences of the damage
26. Punitive Damage These are amounts that exceed the compensatory or consequential damages. Their rationale is (1) to punish the wrong doer, (2) to deter others from doing the same, and (3) to reward the plaintiff for enduring pain and suffering of an intolerable wrong.
27. Causation To build a negligence case an attorney needs to connect the damages with the breach. If not then there is no case. Was the (insert the damages) caused by (insert the breach action/inaction) of the healthcare professional.
28. Strict Liability Theses are cases in which the typical legal elements are not necessary. Not typical liability law: Vicarious liability and liability without fault. The most common are Product Liability and Strict Liability
29. Product Liability These lawsuit focus on a defective product. They focus on either a design flaw of the product, a manufacturing flaw, or a failure to warn the customer of possible side effects of the product.
30. Strict Liability There are some materials that are so dangerous that the mere having them can put you in danger of a strict liability law suit if they harm someone. For instance, radio active material would be such a product. Things you need to note: first, there is a difference between side effect and harm; second, there is no defense, such as safeguards, on the part of the owner; and third, strict liability only applies when NO wrong has been committed.
31. Witness Normally witness are called into a trail to testify about something they observed or did. Their testimony is restricted to a description of an experience they underwent. The exception is expert witnesses. They are asked to give their expert opinion on a topic or issue. Expert witnesses are usually brought in to testify about the causation factor of a case.
32. Res ipsa loquitur “The thing speaks for itself” There are some cases in which the existence of some discovery is a sufficient condition for the breach duty and no further evidence of causation is necessary.
33. Malpractice A malpractice occurs when an error is committed and a professional practices below the professional standard. The legal elements are the same as a Negligence case 1) Duty 2) Breach 3) Damages 4) Causation The main difference between negligence and malpractice is that in malpractice cases the duty is not that of a reasonable person but that established by the professional Standards of Care
34. Torts Harm Actions Harm to Body Assault, Battery, False Imprisonment, Emotional distress, Negligence Harm to Person Defamation and Invasion to privacy Harm to Property Conversion, Trespass to chattels Trespass to land Strict Harm Product Liability Strict Liability Intentional Torts Assault Battery, Conversion Defamation, Emotional Distress, False Imprisonment, Invasion of Privacy, Negligence, Trespass to Chattel, Trespass to Land Unintentional Torts Negligence, Product Liability, Strict Liability