hsci 3200 unit 2

tort

a civil wrong in which the court provides a remedy; divided into wrongs committed against a person or property

objectives of tort law

• preservation of peace b/w individuals providing substitute for retaliation

• culpability (find fault for the wrong doing)

• deterrence (discourage wrongdoer from committing future wrongful acts_

• compensation (for the injured party)

intentional torts

assault, battery, false imprisonment, invasion of privacy, infliction of mental distress, breach of confidentiality, defamation

strict liability

when equipment fails; activity is so dangerous to others that public policy demands absolute responsibility of part of wrongdoer 

negligent torts

informed consent is very important; unintentional commission or omission of an act that reasonably prudent person would or would not do under given circumstances 

battery

intentional torts

• intentional touching of another person in socially impermissible manner w/o person’s consent

• technical battery occurs when a medical practitioner exceeds the consent given by the pt unless emergency situation 

  • of no legal consequence that battery improved a patient’s health

• receiver doesn’t have to be aware that battery has been committed (an unconscious pt)

Perna v. Pirozzi

NJ Supreme Court holds that pt who consents to surgery by one surgeon and is actually operated on by another has action for battery; proof of unauthorized invasion of plaintiff’s person, even if harmless, can entitle one to nominal damages

assault

intentional tort

• deliberate threat coupled with apparent present ability to do physical harm to another 

• no actual contact or damage is necessary 

• battery coupled with threatening 

false imprisonment

intentional tort

• unlawful restraint or confinement of another person against that person’s will or legal authority 

• Plaintiff must 

  • be aware of confinement 

  • have no reasonable means of escape

  • availability of reasonable means of escape may bar recovery

• confinement may be justified in certain circumstances (mentally ill, if persons presents danger to themselves, etc.)

False imprisonment: restraints

• need a medical reason to keep someone restrained

• right to be free from any physical restraints imposed or psychoactive drugs administered for purposes of discipline or convenience and that are not required to treat a pt’s medical symptoms 

  • used to control behavior when pt is disoriented or may cause harm to themselves 

• trend in overuse 

Omnibus Budget Reconciliation Act of 1987

restricts use of restraints to be applied as last resort rather than first option; medications must be justified by indications documented in medical record

infliction of mental distress

intentional tort

• conduct so outrageous that it goes beyond the bounds tolerated by a decent society

• includes mental suffering resulting from painful, emotions such as grief, public humiliation, despair, shame, and wounded pride

• can be based on either intentional or negligent misconduct

• include

  • defendant’s conduct was intentional or reckless

  • conduct was extreme and outrageous

  • conduct caused emotional distress to plaintiff

  • emotional distress was severe

improper disclosure of health information: breach of confidentiality

intentional tort

• dissemination of information about another person’s private, personal matters 

• elements include 

  • unwarranted appropriation or exploitation of personality

  • publication of private affairs, which will cause embarrassment

  • wrongful intrusion into private concerns 

  • publicity that paints the plaintiff in a false light 

improper disclosure of health information: defamation

intentional tort

• injuring person’s reputation through 

• slander 

  • oral expressions and gestures 

• libel 

  • in writing, print pictures or signs 

• must be said to a third party

• two defenses exist: truth and privilege (physician pt relationship)

defenses to intentional torts

consent by plaintiff, privilege due to plaintiff-defendant relationship, necessity

negligent tort

• basis for most medical malpractice cases

• negligent infliction of emotional distress can accompany negligence as a cause of action 

• unintentional commission or omission of an act that reasonably prudent person would or would not do under given circumstances

• based on duty and standard of care

• foreseeable consequence of conduct

• plaintiff has the burden of proof 

  • res ipsa loquitur 

Duty of care

legal obligation to conform to recognized standard of conduct or behavior, if a person fails to act reasonably, it is understood that harm may result

standard of care

behavior that a reasonably prudent professional would have rendered in same or similar circumstances 

professionals are held to reasonably prudent professional standard, including similar education, experience, licensure

established by

• state laws and regulations governing the profession

• professional associations

• accrediting bodies

• certifying bodies

• hospital’s internal bylaws, rules, and regulations

• expert testimony

• common experience

Lucas v. HCMF Corp

• pt transferred to nursing facility following hospitalization for several ailments, including ulcers

• breach of standard of care

• resident returned to hospital 24 days later and the ulcer had grown from 1” to 8” and extended to the bone

• standard of care required that resident be mobilized and turned every 2 hours to prevent deterioration of tissue 

• records reflect that resident wasn’t turned on October 4, 7, or 12 

res ipsa loquitor

• the thing speaks for itself, don’t really have to prove  

• circumstances accompanying injury may permit inference of defendant’s negligence 

• injury of a kind which ordinarily does not occur in the absence of someone’s negligence 

• injury caused by an agency or instrumentality within defendant’s exclusive control 

• injury not due to any voluntary action or contribution by plaintiff 

principles of negligence (must prove)

duty to care

breach of duty

resulted in injury 

approximate causation 

nominal damages

to recognize wrongdoing; little to no dollar amount

compensatory damages

compensate plaintiff for losses; economic and non-economic

punitive damages

beyond compensatory damages; intended to punish or deter conduct

nonfeasance

failure to act when there is a duty to act as a reasonably prudent person would in similar circumstances

misfeasance

improper performance of an act that a person might lawfully do, or active misconduct that causes injury

(ex. incorrect prescriptions, removing wrong limb)

malfeasance

performance of wrongful act that might be unlawful

(ex. surgery without consent) 

ordinary negligence

failure to do what a reasonably prudent person would or would not do under the same circumstances

gross negligence

intentional or wanton omission of required care or performance of an improper act

actual causation

cause in fact; “but-for” the defendant’s conduct, result would not have happened

proximate causation

injury was the foreseeable result of defendant’s negligence

Helling v. Carey

standard of care not to screen routinely was considered too loose

pt was refused a certain screening as her age was not in range of the normal age group to do the optometric treatment 

Liebeck v. McDonalds

• plaintiff spilled coffee on herself, sues McDonalds for policy

• burned 16% of body, lost 30% of body weight, 3rd degree burns requiring skin graft

• coffee was served at 190 degrees, hot shower is recommended to be between 90-100 degrees

contributory negligence

bars plaintiff from recovering damages from the defendant if the defendant is able to prove that plaintiff’s conduct contributed in part to injury that plaintiff suffered 

harm would not have occurred if plaintiff did not in some way contribute to the harm

comparative negligence

plaintiff’s recovery is reduced based on his/her percentage of negligence that contributed to injury

pure: recovery based on actual percentages

partial: recovery permitted only if plaintiff is not more negligent than the defendant

assumption of risk

bars plaintiff from recovering on his or her negligence claim if defendant proves that the plaintiff

• has actual knowledge of a danger

• understood and appreciated the risks associated with the danger 

• voluntarily exposed himself or herself to those risks

unavoidable accident

defense to negligence

occurrence that could not have been foreseen or anticipated in exercise of ordinary care, and which results without fault or negligence of either defendant or plaintiff

act of god

defense to negligence

any disaster that is not caused by humans, and may not be a reasonably foreseeable event

if the proper care and diligence on the part of the tortfeasor would have avoided the act, the act is not excusable

Darling v. Charleston Community Hospital

removes charitable immunity: prior pt could sue doctor for harm, but not sue hospital → pt can now sue doctor and the hospital (corporate negligence) 

Corporate negligence (primary liability)

when hospital’s act or omission was a substantial factor in bringing about the harm

strict liability

imposes liability without any showing of negligence

liability w/o fault (does not have to prove negligence bc speaks for itself) 

only applies to products, not services 

most common in product liability (vendors and manufacturers) 

defenses to liability 

contributory/comparative negligence 

assumption of risk

Good Samaritan Laws 

Worker’s compensation laws 

governmental immunity 

statute of limitation 

plaintiff needs to prove strict liability with

1. plaintiff sustained damages 

2. defendant was engaged in business of manufacturing, assembling, selling, leasing, or distributing the product in question 

3. product was supplied by defendant in a defective condition that rendered it unreasonably dangerous 

4. defective condition proximately caused the plaintiff’s damages, must prove that defective condition existed → proving existence of a defective condition without having to establish that condition was caused by a negligent act

Good Samaritan Statutes

relieves a person of liability if, without prior negligence on his part, when a person is confronted with a sudden emergency and acts as an ordinarily prudent person would act under the circumstances

three different types of torts

intentional, negligence, liability

physician countersuits

rarely successful, but can bring up defamation, negligence, abuse of process, malicious prosecution

tort reform (general)

enacted to control costs and perceived injustices

contracts 

in order to have contract, need offer, evaluation of offer, and acceptance 

agreement b/w parties and enforcement of those agreements 

can be oral or written (oral is accepted by law) 

parties must be legally competent

medical staff bylaws are considered a contract

elements of contract

offer - promise to do/not do something if the other party agrees to do/not do something

acceptance - of the offer (reflect meeting of the minds)

consideration - what each party will receive from the other in return for performing the obligations in the contract

breach of contract

basis of a lawsuit in which one or more terms of a contract is/are violated

• must provide valid contract was executed

• plaintiff met the contract requirements

• defendant failed to meet contract requirements

• economic loss to plaintiff as a result

breach of contract lawsuits must be filed within the applicable statute of limitations

defense for nonperformance of contract comm

fraud, mistake of fact, duress, illegality, impossibility

common provisions in contracts

harmless/indemnification clauses may provide the party assuming liability to hold the other party harmless for their own actions/inactions or parties agree to hold each other harmless for each others’ actions/inactions

warranties

representations that induce a party to enter into a contract

relate to the quality of goods or services purchased or leased

may be express or implied by law

may be disclaimed

physician-patient contract

relationship is a form of contract

physician agrees to provide service in xchange for payment

termination of physician-patient contract and abandonment

termination can occur by action of either party

pt ceases treatment or dies

parties mutually agree to end relationship

pt dismisses physician

physician dismisses pt from care

statute of limitations

allows injured person reasonable time to bring a suit forward for recovery

allows claims to be resolved while evidence is available and fresh

statutory enactments that place time limits on certain claims

period begins to run when the act or omission causing injury is complete

time of last exposure for ongoing injury

intention in criminal law

expression of the limits of acceptable human and institutional behavior

• defined as acting with the specific purpose of bringing about the prohibited result or acting with the awareness that the result is almost certainly going to follow 

• zero tolerance in healthcare 

misdemeanor

offense generally punishable by less than 1 year in jail and/or fine

felony

punishable by imprisonment in state or federal penitentiary often for more than 1 year 

components of a crime (need to prove beyond reasonable doubt)

• act itself 

• guilty mind (requisite mental state and intent)

• causation: harm that is the result of the act committed 

arraignment 

charged with crime

indictment

result of grand jury

conference

when plea bargaining occurs

penalties

imprisonment, fines, exclusion from federal health care programs, loss of medical license 

antitrust laws

seek to protect the public against trusts and monopolies so large that they have the power to control a market

healthcare fraud

unlawful act, generally, deception for personal gain

• false misrepresentation of facts 

• made knowingly and willfully

• failure to disclose a fact that is material (relevant) to a healthcare transaction 

• damage to another party that is reasonably relies on the misrepresentation or failure to disclose 

upcoding/unbundling

falsely adding a code to a medical bill (service not performed) 

unbundling a service package to charge for individual parts of the service (given money for a procedure, and provider charging for the room, bed, medicines used, etc.) 

false claims act

must prove that provider knowingly submitted false claim

• has actual knowledge or falsity of information

• acts in deliberate ignorance of truth or falsity of information 

• acts in reckless disregard of truth or falsity of information 

anti-kickback statute 

establishes criminal penalties for individuals and entities that knowingly and willfully offer, pay, solicit, or receive remuneration to induce business for which payment may be made under any federal healthcare program

prohibits payments for pt referrals

patient abuse

mistreatment or neglect of individuals who are under care of healthcare organization

abuse includes physical, psychological, emotional, mental, medical, and financial

pediatric and elderly are vulnerable populations, and there is underreporting

purpose of informed consent

protecting autonomy

protecting status of human being

avoids emotional duress

encourages doctors to carefully consider

fosters rational decision making to include the pt

involves public generally in medicine

consent for treatment 

law recognizes the right to control one’s own body, including medical decision making through federal and state statutes, case law, and common law

treatment w/o proper consent can result in liability for negligence and/or battery

respondent superior

hospital is liable for actions of its employees

express consent

verbal consent

not required to sign additional consent form

does not necessarily result in “informed consent”

implied consent

communicated through person’s conduct or other means besides words (pt comes in an ambulance, can assume they consent to care)

reasonable standards apply

most appropriate for non-invasive, low-risk interventions

law presumes consent in incapacitated patients needing emergency treatment

informed consent

tailored to treatment or procedure

consent is voluntary

pt consent should be an informed pt-provider process with opportunity to ask questions 

responsibility of the treating provider

must be in layman terms that patient can understand

procedure w/o consent is battery

required elements of informed consent

need to know risks/benefits of having or not having procedure

nature/purpose of tx 

name of individual providing tx

risks/benefits of alternative treatment

alternative treatments 

risks not disclosed by consent held to be okay

pt requests not to be informed

blood loss or infection during surgery (common knowledge)

pt had the procedure before

risks that arise only when procedure is poorly performed 

shared decision making

involves using patient decision aid (PDA) to help patients understand options and engage in thoughtful discussions regarding their preferences to make well-informed decisions 

general (blanket) consent form

signed upon admission

for gen medical treatment, gen diagnostic procedures, routine hospital care and nursing services (routine touching)

is not evidence of consent to major procedures

may be valid for minor and noninvasive procedures with insignificant risk

human subjects research

any research involving human participants needs IRB approval

consent to participate in research studies also includes consent to disclose medical information related to research

obtained consent needs to be obtained from study participants 

National Research Act of 1974

to prevent misuse of human subjects

requiring codifying policy for protecting human subjects 

implemented federal policy for the protection of human subjects (common rule)

imposes protection for research subjects, requires organizations have IRBs that must approve research on subjects

Institutional Review Board

needs at least 5 members on it (members from community that represent community interests)

approve, review, monitor medical research

determines whether regulatory standards are met and if study is ethically sound

Elements of informed consent that are required by IRB

abstract of study, foreseeable risks, discomforts, benefits to the subject, disclosure of appropriate alternative procedures or courses of tx that might be advantageous to the subject

balance of two compelling interests

confidentiality of information about human subjects

success of research depends on access to health information about subjects 

federal regulations address balance

DHHS: supervises investigators who receive federal funds for research

FDA: supervises clinical trials of pharmaceuticals and related medical devices

medical emergencies

exceptions to consent 

two factors that constitute emergency: permanent impairment to health and emergent situation

Good Samaritan statutes protect

extending surgery 

when unanticipated conditions during surgery occur, additional emergency treatment may be necessary

exceptions to informed consent in criminal

governmental action (treatment required or authorized by law in criminal or civil cases)

often pertains to requests by law enforcement (testing for BAC levels)

mandatory interventions for certain infectious diseases

governmental action for civil cases

mental or physical condition of a party is at issue, court orders exam

waiver

the research involves no more than minimal risk to the subjects

will not adversely affect the rights and welfare of teh subjects

therapeutic privilege

disclosure of info poses significant threat of detriment to pt

does not apply if only fear is that info would cause the patient to forgo treatment

risk is too common to warrant special disclosure or risk is remote and improbable

competent adult

age of legal majority varies per state (in two states, age is 19, but normally 18)

competency is a medical judgement

may refuse to consent or authorize withdrawal due to 

• religious beliefs

• pursuant to advance directives

• providers should be cautious in treating a non-consenting adult without court order or other clear authority

medical record is primary/sole source of documenting decision to withdraw or forgo life sustaining medical treatment 

incompetence

legal status, not medical diagnosis

states can override autonomy 

• Jehovah’s Witnesses (child needs blood transfusion, parents refuse)

POLST or MOLST

encourages patients and providers to discuss what the patient wants and does not want when seriously ill or frail 

informed decisions can then be made and documented on a form filed within the medical record 

standing order 

minors and consent

most state statutes provide allowances for

• emancipated minors 

• married persons, even if marriage has been dissolved 

• mature minors (some unhoused) 

• active military duty

• court or other legal authority orders treatment 

• refer to state law for consent requirements for minors of divorced or legally separated parents 

state statutes grant rights for minors consent 

STD treatment

birth control

drug or alcohol conditions

prenatal care

mental health 

Uniform Health Care Decision Act

next of kin hierarchy for medical decision making if pt is not competent and has not been appointed an agent on his/her behalf, state law usualyl provides for

know the hierarchy

• judicially appointed guardian

• durable power of attorney

• spouse or state registered domestic partner

• adult child

• parent

• adult sibling

• adult relative

• close friend

advanced directives

legal documents that specify an individual’s healthcare wishes in event of temporary or permanent loss of competence 

may appoint another person to make decisions for oneself

may leave instructions on restricting use of equipment or procedures to prolong life