The Medical Malpractice Lawsuit and the Trial Process

EthicsQ2Week4

what is a tort?

injury to another person’s person, property, or reputation, for which the injured party is entitled to compensation

\- Civil Case

Malpractice

Parties responsible for care or treatment act or fail to act, resulting in damages and/or direct losses to patient or individual

\-A type of negligence

Elements of Negligence

• Negligence

\-Failure to use care or act in a certain way that a reasonably prudent and careful person would under similar circumstances

• To prove:

\-Duty

\-Dereliction of duty

\-Direct cause

\-Damages

Duty

• Existence of a legal responsibility to provide care

• Exception: emergency care for an accident victim on the side of the road

• To establish:

\-Who are the responsible parties involved?

\-Was there a professional relationship between the patient and the provider?

Respondeat Superior

• “Let the master answer”

• Employer is responsible for the action of employees while in the course of employment

• Covers actions within the scope of employment only

Categories of Dereliction of Duty (Breach)

Must prove that there was a failure to perform a duty

Categories of dereliction of duty (breach)

• Malfeasance

\-Intentional action or performance of an illegal or wrongful act

• Nonfeasance

\-Failure to perform an action that should have been taken

• Misfeasance

\-Poor performance of an action causing damage

Direct Cause

• Must first establish duty and dereliction of duty

• Then show that damage or loss was directly related to the negligent act

• Alleged misconduct  injury

Damages

Must first prove duty, dereliction of duty, direct cause, and damages • Three types:

\-Compensatory damages – Financial loss

\-Punitive damages – punishment for intentional wrong

\-Nominal damages – small amount, no major damage

Establishing a Case

• Plaintiff must prove the four elements of negligence

• Proof must be by “preponderance of evidence”

• This means they must show that it is more likely than not that the negligence occurred

Res Ipsa Loquitor

• Clear there was a duty and the injury could not have occurred without negligence

• In most states transfers the burden to prove no negligence to the defendant

To use Res Ipsa Loquitor

• Evidence of negligence must be unobtainable OR

• Healthcare provider has superior knowledge or means of obtaining evidence OR

• Type of injury normally would not occur without negligence OR

• Patient was not responsible OR

• Healthcare provider was responsible for the patient at the time of the negligence OR

• Provider had exclusive control over the circumstances

Defenses for Malpractice Part 1

• Denial

\-Allegations are entirely false

\-Defendant asserts innocence

• Alternative dispute resolution (ADR)

\-Mediation or arbitration

• Statute of limitations

\-Plaintiff has a specific number of years after discovery to file suit

\-Discovery rule may apply

Defenses for Malpractice Part 2

• Res judicata

\-Patient cannot sue for the same damages a second time

• Affirmative defense

\-Outcome caused by other factors beyond alleged negligence

\-Denial of negligence

Defenses for Malpractice Part 3

• Comparative negligence or contributory negligence

\-Action or inaction of the plaintiff was a contributing factor in damages incurred

• Emergency care

\-No liability absent intentional or reckless misconduct

\-Emergency Medical Treatment and Active Labor Act (EMTALA): requires that patients in an emergency department be stabilized and treated regardless of ability to pay

Defenses for Malpractice Part 4

• Good Samaritan laws

\-Provide protection to those who assist someone who is injured or in danger

\-Medical professionals who respond in good faith in an emergency

\-Developed to protect against litigation in emergencies

\-Healthcare professionals are not required to provide assistance if they have no prior relationship

Defenses for Malpractice Part 5

• Assumption of risk

\-Plaintiff was aware of the risks and accepted them

\-Medical record is the best defense

\- Should include a consent-to-treat form that explains the risks

\-Must be documented properly, accurately, and completely

• Does not prevent liability in the case of reckless or intentional actions

Professional Liability

• Physician or provider is liable for actions of anyone under their employ

\-All parties are liable, the highest license is held most responsible

• Professional liability insurance

\-Carried by providers, facilities, and allied healthcare workers

\-Usually covers the healthcare professionals and other employees as long as they are working within their legal scope of practice and are on duty

Prevention of Liability and Malpractice Part 1

• Always work within scope of practice

• Never promise a cure

• Identify and confirm identity of patient

• Verify allergies

• Document every patient encounter

• Stay current in the field

• Treat patients with dignity and respect • Work within job description

Prevention of Liability and Malpractice Part 2

• Role of the risk management supervisor

\-Monitor all aspects of prevention of malpractice

\-Guard the practice against issues of fraud and abuse

• Duties of a risk management supervisor

\-Safety of staff and patients

\-Communication

\-Documentation