Health Law Exam 2

Tort

• Civil wrong for which law will provide remedy in form of lawsuit to recover damages

• Divided into the wrongs committed against against person and property

Objectives of Tort Law

• Preservation of peace between individuals providing subsitute for retaliation 

• Culpability

• Deterrence

• Compensation

Culpability

find fault for wrogn doing

Deterrence

discourage wrongdoer from commiting future wrongful acts

Compensation

indemnity injured party

Intentional torts

• Battery

• Assault

• False imprisionment 

• Invasion of privacy

• Intentional infliction of emotional distress

• Breach of confidentiality

• Defamation 

Battery

• intentional toucing of another person in a socially impermissible manner without person’s consent 

• Technical nattery occurs when a medical practitioner exceeds the consent given by the patient unless emeergency situation

  • no legal consueguence that battery improved a patient’s health

  • Receive doesn’t need to be aware that it happened

    • ex. unconsious patients 

• Perna v. Pirozzi 

Perna v. Pirozzi 

• NJ supreme court held that a patient who cosnents to the surgery by one surgeon and is actually operated by anotehr has action for batter 

• proof of unauthorized invasion of plaintiff’s person, even if harmless, can entitle one to nominal damages

Assault

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

  • no actual contact or damage is necessary

  • apprehension or fear of battery can constitute an assault

false Imprisionment 

• Unlawful restraint of confinement of anotehr person against that person’s will or legal authority

• confinement may be justified in certain circumstances. 

  • mentally ill or if the persons presents danger to themselves 

False imprisoment

• Be aware of confinement

• have no reasonable means of escaape 

  • availability of reasonable means of escape may bar recovery

False Imprisionment: Restraints

• right to be free from any phsycil restraints imposed or psychoactive drugs administered for purposed of discipline or convenience that are not required to treat a patient’s medical symptoms

  • used to control behavior when patients are disorientated or may cause harm to themselves

    • falls, suicide, pulling out pic lines

• Trends exists in overuse

• Omnibus Budget Reconciliation Act of 1987

Omnibus Budget Reconciliation Act of 1987

• Restricts the use of restraints to be applied as last resort rather than first option 

• Medications must be justified by indications documented in medical record 

Infliction fo Mental distress

• Characterized by conduct so outrageous that it goes beyonf hte bounds tolerated by a decent society

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

• Can be based on either intentional or negligent misconduct

Elements of infliction of mental distress

• 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 info: breach of confidentiality

• disemination of info about another person’s private, personal matters

• incluedes

  • unwarrented appropriaton or exploitation of personality

  • publicaton of privacate affairs, which will cause embarrasement 

  • wrongful intrusion into private concerns

  • publicity that paints the plaintiff in a false light  

Improper disclosure of health info: Defamation of Character 

• Injuring a person’s reputation through 

  • slander

  • Libel 

• these have to be said to a third party

• truth and privledge ar ethe two defenses that exist 

Slander

oral expressions/ gestures

Libel 

In writing, print pictures or signts 

Defenses to intentional torts

• Consent by plaintiff

• privilege due to plaintiff-defendent relationship 

• Necessity 

Negligence

• basis for most medical malpractice cases

• negligent infliction of emotional distress can acompany negligence as a casue of action

• Plaintiff generally has burden of proof to prove all elements

  • excluding res ipsa loquitur 

Negligent Torts

• unintentional comission 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 

Duty of care

• legal obligation to conform the recognized standard of conduct or behavior 

• reasonably prudent person standard 

• professions are held to reasonably preudent professional standard

  • includes similar education, experience, and liscencesure 

• If a person fails to act reasonably, it is understood that harm may result 

Reasonably prudent person standard 

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

Standard of Care

• Behavir that a reasonably prudent professional would have rendered in same or simialr circumstances

• established by

  • state laws and regulations governing the preofession

  • professional associations

  • acrcrediting bodies

  • certifying bodies

  • hospital’s internal bylaws,rules and regualtions of the meidcal staff

  • expert testimony

  • common experience

Lucas v. HCMF corp

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

• resident returned to hospital 24 days later- ulcer on buttocks had grown from 1 inch to 8 inches and extened to the bone

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

• health records reflect resident wasn’t turned on october 4, 7, or 12 

Res Ipsa Loquitor

• the thing speaks for itself 

  • circumstances acompanying injury may permit inference of defendants negligence

• Elemtns

  • injury of a kind which ordinaryily does not occue in the absence of someone’s negligence

  • Injusry caused by an agency or instrumentality withing defendan’ts exclusive control

  • injury not due to any voluntary action or contriobution of plaintiff

Principles of negligence

Duty+ breach+ injury+ causation= liability (damages rewarded)

Damages

• Compensate a plaintiff for physical and monetary injuries

  • Nominal, Compensatory, and Punitive 

Nominal

• Recognized wrongdoing

• Little to no dollar amount

Compensatory

• Compensate plaintiff for losses

  • Economic(special) -tangiable losses resulting from circumstances 

    • ex.  medical bills

  • Non-economic (general)- intangible lose

    • Ex. emotional distress 

Punitive

• Beyond compensatory damages; intended to punsih or deter conduct

• ex. recless or egregious

• these cases typically set precedence

Types of Negligence

• Nonfeasance

• Misfeasance

• Malfeasance 

Nonfeasance

• Failure to act when thre is a duty to act as a reasonably rudeant person would in similar circumstance

• ex. not calling a code in time 

Misfeasance

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

• ex. accidentally kicking bladder 

Malfeasance

• performance of wrongful act that might be unlawful 

• ex. using a nickel joint replacement when you know the pt is allergic

Degrees of negligent

ordinary and gross

Ordinary engligence

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

Gross negligence

Inentional or unintentional omission of required care of performance of an improper act 

• if you can prove this compensation goes up

Duty of care

obligation toc onfrom to recognized standard of care 

Breach of duty

deviated from standard of care, failure to adhere to obligation

Injury

resulting from breach

Causation

• is breach of standard of care

  • What caused injury? 

  • actual and proximate 

• The scope of injury (damages) must be shown to cause

  • economic loss

  • pain and suffering

  • lost chance of survival or recovery 

Quaid v. Baster Healthcare Corp 

• While in the hospital, infants Zoe and Thomas were medicated to treat a staph infection at Cedars Sinai Medical Center

  • Heparin was given instead of Hep-Lock

• Both infancts sustained and suffered severe and life-threatening reactions, internal injuries and shock which may be permanet in nature could cause complications in their future

Healling v. Carey

• standard of care not to screen routinely was considered too lose

• Mammograms

  • standard to scree was consdiered too strict

Liebeck v. McDonalds 

• Lieback claimed defendant dailed to inspect the temp of the coffe, or did so negligently or possibly did with malice and complete disregard for the dangers associated with serving coffee at such temperature

• found that mcdonalds policy was to serve coffee at 180-190 degrees 

• Expert witnesses testified about how quickly 3rd degree burns can form 

Defenses to negligence

• Contributory negligence

• Comparitive negligence

• assumption of risk

  • not good in medical sense

• Unavoidable Accident

• Act of god 

Contributory Negligence

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

Comparative Negligence

• plaintiff’s recovery is reduced based on their 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 a plaintiff from recovering on his or her negligence claim if the defendant proves the the plaintiff

  • had actual knowledge of a danger

  • understood and appreciated the reisks associated with the danger

  • voluntarily exposed themselves to those risks

• Not a good degense in medical cases because people seek medical care out of need rather than voluntary

Unavoidable accident

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

Act of god

• any disaster that is not cause by humas and may not be a reasonably forseeable event

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

Corportate negligence 

• primary liability 

  • hospital deviated from standard of care

  • hospital had actual or constructive notice of teh defects or procedures taht created the harm

  • hospital’s act or omission was a substantial fact in bringing the harm

    • Darling v. Charleston Community Hospital set precedence

Darling v. Charleston Community Hospital

stablished the doctrine of corporate negligence, which holds hospitals directly liable for a patient's injuries that result from the hospital's own failure to provide adequate care. The Illinois Supreme Court ruled against the hospital in this landmark medical malpractice case, which arose from an 18-year-old football player's leg amputation after receiving negligent care. 

-removed chariatble immunity

Strict liability 

• imposes liability without any showing of negligence

• dows not apply to services only to products

• most common application has been in product liabilty cases 

  • vendors and manufacturers 

Vicarious Liabilty

• Respondeat superior- secondary liabilty

• Organization is liable to patients for torts conducted by its employees 

  • applies to those who are working within the scope of their duties

Strict liability

• liability without fault

• applies liability for loss tdue to one’s acts or omissions regardless of fault

• most common. application has been in areas of abnormally dangerous activities or product liability cases 

Need to prove the four elements of strict liabitly 

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 condtion that made it unreasonably dangerous

4. Defective condition proximately casued the plaintiff’s damages. Yous have to prove that the defective condition exisited, but need not prove that defective condition occured as a result of negligence

   1. plaintiff can est. a strict liabilty case simply by proving the exisitence of a defective condition wihout having to establis that the condition was caused by a negligent act

Defenses to liability

• Contributory/ comparative negligence

• Exculpatory contracts vs. releases

• assumption of risk

• good samaritan laws

• Workers’ comp laws

• Governmental immunity

• Statute of limitation

Good Samaritan Statutes

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

Physician Countersuits

• Rarely successful 

• Legal Theories include

  • defamation

  • negligence

  • abuse of process

  • malicious prosecution

tort reforms

• enacteed to control costs and perceived injustices bc people can’t afford malpractice insurance

  • caps on noneconomic and punitive damages 

  • affidavits of merit

  • limitd on attorney contingency fees

  • modification of collateral source payment rule

  • structured settlements

  • limits on statutes of limitations periods

  • joint and several liability

  • no-fault systems 

Collateral Source Payment

Payments a plaintiff in a tort case receives from a source otehr tha the defendant(s). Some states have passed laws allowing courts to consider collateral source payments. The intended effect of the new collateral source laws is to diminish the damages awarded by juries who are now aware of other financial resources that the plaintiff has 

Noneconomic Damages

Developed as a way to compensate qn injured plaintiff for losses that do not have a cash value, such as pain and suffering or empotional distress. Some states have put limits on amount 

Affidavit of Merit

Deters excessive and/or frivolous litigation, some jurisdictions require that an affidavit of merit accompany a complaint. The purpose of filing this affdavit is to establish the the sufficiency of the complaint and to serve as a pretrial screening

Contingency fees 

Many states have taken reform measures to curb abuse of contingency fee arrangements by enacting statutes to limit contingent fees in medical liability cases sto certain percentages or provide that a court must review o approve the amount of such fees

Structured Settlement

Arrangement for a claim is pain in installments rather than in one lump-sum settlement. To help curb abuses by companies willing to purchase a structured settlement for a significantly discounted lump-sum payment, many states have responded by enacting legislation to limit the sale of structured settlements 

No-fault insurance

Describes any type of insurance contract under which insureds are indemnified for losses by their own insurance company, regardless of fault in the incident generating losses. In instances of catastrophic injuries and/or damages, no-fault states still permit an individual to bring claims where basic no-fault principles would not be adequeately protects or compensate the injured party

Contracts

• Focuses on agreement between parties and enforcement of those agreements

  • vs. tort law, which focuses on negligence or intentional wrongs committed

  • Negligence does not factor into contract law

• Can be oral or written

• parties must be legally competent

• Medical Staff bylaws are considered a contract

Elements of contract

• Offer

• acceptance

• Consideration

Contract offer

promise to donot do soemthing if the other part agrees to do/not do something 

Contract Acceptance

reflects meeting of the minds

Consideration of contracts

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

Breach of contracts

• Basis of a lawsuit in which one or mroe 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

• fraud

• mistake of fact

• duress

• illegality

• impossibility

Fraud

Based on misleading information

Mistake of fact

if both parties relied on a mistake

Duress

If unlawful threats or pressure was used to force a contract to be executed

Illegality

if a contract was for illegal purpose or against public policy

Impossibility

if contract required acts that were impossible to perform

Common provisions in contracts

• hold harmless/idemnification clauses that provide that eother

  • Indemintor agrees to hold the other party harmless for the indemnitor’s own actions or inactions

    • if those actions or inactions harm the other party, the indemnitor will make the other party whole via compensation

  • or Parties agree to hold each other harmless for eacahotehr’s actions/ inactions

Indemnitor

party assuming liability

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 in the contract or implied by law

• may be disclaimed in the contract

Physician-Patient Contract

• Relationship is a form of contract 

  • physician agrees to provide service in exchange for payment

  • may be expressed or implied

• Obligation to treat does not arise until there is a physcian-patient relationship

• A promise to a ptient about the certainty of an outcome (warranty) may lead to a breach of contract lawsuit

Physician-Patient Contract termination 

• patient ceases treatment or dies

• parties mutually agree to end relaationship

• patient dismisses physician 

• Physician dismisses patient from care

How physicians avoid claims of abandonment

• avoiding abrupt termination

• Notifying patient in writing and giving the patient time to secure another provider 

• Agreeing to continue seeing the patient until another provider is secured

• cooperating in sharing relevant information with the new provider

Statute of limitations

• statutory enactments that place time limits on certain claims

• allows person reasonable time to bring an action for recovery 

• allows claims to be resolved while evidence is available and fresh 

Statute of limitations period begins to run 

• when the act or omission causing injury is complete

• Time of last exposure for ongoing injury 

Criminal law Intention 

acting with the specific purpose of bringing about the prohibited result or acting with the awareness that the result is almsot certainly going to follow, even if the actor’s purpose is somethinh other than bringing about the prohibited result 

criminal case types 

misdemeanor and felony

Criminal Law categories

Substansive and procedural 

Misdemeanor

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

Felony

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

criminal law categories

• Substansive

• Procedural

Substansive law

defines specific offenses, the general liability, and specific punishment

-ex felony vs. misdemeanor 

Procedural Law

steps trhoguh which criminal case passes from initial investigation of crime through trial and sentence, and eventual release of criminal offender 

Components of crime

• each element must be proven beyond a reasonable doubt to constitute a criminal act:

  • act itself (or guilty act) 

  • Requisite mentla state/intent (guilty mind) 

  • Causation

Causation

Harm thqat is the result of the act committed

-the accused performed the act that caused the harm with the intent to cause the harm 

Criminal Process

• Arraignment 

• Indictment

• Conference 

• Criminal trial

• Sentencing 

• Appeal 

Penalites

• imprisionment

• fines

• exclusion of federal health care programs

• loss of a medical license