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5530: Chapter 3

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  • 1. Chapter 3: Tort Law 2
  • 2. What’s Your Verdict?Interpret the case at the beginning of the chapter and consider the facts. 3
  • 3. The Facts• Dr. Evans gave the plaintiff a cursory breast examination during a routine physical evaluation on May 26.• The day after, plaintiff discovered a small mass in her right breast.• Plaintiff sought an additional medical examination the next day, May 27, but was not seen until June 21.• Every day from May 27 to June 21 the plaintiff signed the clinic list and gave the reason for the medical examination.• The Nurse claims there was no measuring tool (a ruler) available to measure the mass on June 21. 4
  • 4. Facts cont.• One June 28, Dr. Evans sees the plaintiff again, failing to measure the mass, and incorrectly recording in the progress notes that the plaintiff’s right wrist had the mass when in fact it was the plaintiff’s right breast.• September 28, the plaintiff was transferred to the Franklin County Prerelease Center. Patient received a mammogram, and a golf-ball sized lump was found. The tumor was probably malignant.• November 16, the plaintiff was seen by Dr. Lidsky, a surgeon, and a mastectomy was performed which resulted in nearly removing the plaintiff’s entire right breast. 5
  • 5. You Decide: What’s your verdict? Make your preliminary verdict now. 6
  • 6. Tort Law A DefinitionA tort is a Civil wrong, other than a breach of contract, committed against a person or property (real or personal) for which a courtprovides a remedy in the form of an action for damages. What are the objectives of tort law? 7
  • 7. Objectives of Tort Law1. Culpability: Find fault for wrongdoing.2. Deterrence: of wrongful acts thru the assessment of monetary damages.3. Preservation: of peace between individuals.4. Compensation: to indemnify injured person/s. What are the basic 3 categories of tort law? 8
  • 8. Categories of Tort Law1. Negligent2. Intentional – e.g., assault, battery, false imprisonment, and invasion of privacy3. Strict liability regardless of fault, intensions, or negligence – e.g., products liability Differences between negligent & intentional torts? 9
  • 9. Negligent & Intentional Torts1. Intent a. present in intentional torts but not in negligent torts.2. Willful Act a. intentional torts always involve a willful act. b. a negligent may not involve any wrongdoing. What is negligence? 10
  • 10. Negligence Negligence is a tort. It is the “unintentional” commission or omission of an act that areasonably prudent person would or would not do under given circumstances. What is commission of an act? 11
  • 11. Commission of an Act• Administering the wrong medication• Administering the wrong dosage of a medication• Administering medication to the wrong patient• Performing a surgical procedure without patient consent• Performing a surgical procedure on the wrong patient• Performing the wrong surgical procedure What is omission of an act? 12
  • 12. Omission of an Act• Failing to conduct a thorough history & physical examination• Failing to assess & reassess a patients nutritional needs• Failing to administer medications• Failing to order diagnostic tests• Failing to follow up on abnormal test results What is malpractice? 13
  • 13. MalpracticeNegligence or carelessness of a professional person (nurse practitioner, pharmacist, physician, physician’s assistant, etc)For example, a surgeon who conducts a surgical procedure on wrong body part What is criminal negligence? 14
  • 14. Criminal NegligenceThe “reckless disregard” for safety of another. The willful indifference to injury that could follow an act. Three forms of negligence? 15
  • 15. Forms of Negligence1. Malfeasance2. Misfeasance3. Nonfeasance What is malfeasance? 16
  • 16. MalfeasanceExecution of an unlawful or improper acte.g., performing a partial birth abortion in the 3rd trimester when prohibited by law What is misfeasance? 17
  • 17. MisfeasanceImproper performance of an act, such as the removal of a healthy left kidney instead of the diseased right kidney What is nonfeasance? 18
  • 18. NonfeasanceFailure to act when there is a duty to actFor example, failing to order diagnostic tests or prescribe medications that should have been ordered or prescribed under the circumstances Two degrees of negligence? 19
  • 19. Degrees of Negligence1. Ordinary Negligence2. Gross Negligence What is ordinary negligence? 20
  • 20. Ordinary NegligenceFailure to do under the circumstances what a reasonably prudent person would or would not do. What is gross negligence? 21
  • 21. Gross NegligenceIntention or wanton “omission of care” that would be proper to provide or the “commission of an act” that would be improper to perform. What are the elements of negligence? 22
  • 22. Elements of Negligence1. Duty to Use Due Care − Standard of care2. Breach of Duty3. Injury/Actual Damages4. Causation − Proximate Cause − Foreseeability What is duty to care? 23
  • 23. I. Duty to CareA legal obligation of care, performance, or observance imposed on one to conform to a recognized standard of care to safe guard the rights of others. 24
  • 24. Examples of Duty• Duty to treat emergency patient• Duty to provide timely care, stabilize, and transfer• Duty to hire competent employees What is standard of care? 25
  • 25. Standard of Care• The Standard of Care describes the conduct expected of an individual in a given situation.• The general Standard of Care that must be exercised describes what a “reasonably prudent person” would or would not act under the “same or similar circumstances.”• It is measuring stick for properly assessing actual conduct required of an individual.• The reasonableness of conduct is judged in light of the circumstances apparent at the time of injury and by reference to different characteristics of the actor (e.g., age, gender, physical condition, education, knowledge, training, and mental capacity). Describe a reasonably prudent person. 26
  • 26. Reasonably Prudent PersonDescribes a nonexistent, hypothetical person who is put forward as the community ideal of what would be considered reasonable behavior. What is meant by similar circumstances? 27
  • 27. Similar Circumstances• Circumstances at the time of the injury.• Circumstances of the alleged wrongdoer/s at the time of injury. – Age – Physical condition – Education & training – Licenses held – Mental capacity, etc. How is the standard of care determined? 28
  • 28. Determining Std. of Care• Established by a legislative enactment or administrative regulation.• Adopted by the court from a legislative enactment or an administrative regulation.• Established by judicial decision.• Applied to the facts of the case by the trial judge or jury, if there is no such enactment, regulation or decision. – courts often rely on the testimony of an expert witness as to the standard of care required . Community standard of care vs. national standard of care? 29
  • 29. Duty Created by Statute• The defendant must have been within the specified class of persons outlined in the statute• The plaintiff must have been injured in a way that the statute was designed to prevent• The plaintiff must show that the injury would not have occurred if the statute had not been violated 30
  • 30. Community v. National Std• Community Standard – the hometown standard - we want to do things our way• National Standard – most currently accepted standard of care on a national basis. 31
  • 31. Ethics & Standard of Care• Some medical standards of care are influenced by medical ethics• For example, a decision concerning termination of resuscitation efforts is an area in which the standard of care includes an ethical component 32
  • 32. Case: Hiring PracticesNurse hired sight unseen over telephone. Applicant falsely stated in an employee application that he was licensed as an LPN. His license was not verified by the employer. He had committed 56 criminal offenses of theft. He assaulted a resident a resident & broke his leg. What was the duty of the employer? 33
  • 33. Case: Hiring Practices Employer’s Duty• Standard expected: – The employer had a “duty” to validate the nurse’s professional license. What is breach of duty? 34
  • 34. II. Breach of Duty• The failure to conform to or the departure from a required obligation owed to a person.• The obligation to perform according to a standard of care may encompass either doing or refraining from doing a particular act.• Deviation from the recognized standard of care.• Failure to adhere to an obligation.• Failure to conform to or the departure from a required duty of care owed to a person. 35
  • 35. Breach Of Duty Examples• For example, breach of duty occurs when – a physician fails to respond to his/her on-call duties. – an employer fails to adequately conduct a pre- employment check (e.g., licensure, background check). Example of a breach of duty 36
  • 36. Case: Hiring Practices Breach of Duty - INurse hired sight unseen over telephone. Applicant falsely stated in an employee application that he was licensed as an LPN. His license was not verified by the employer. He had committed 56 criminal offenses of theft. He assaulted a resident a resident & broke his leg. What was the breach of duty? 37
  • 37. Case: Hiring Practices Breach Of Duty - II• The employer failed to verify the applicant’s licensure.• A more thorough background check should have revealed this employee’s previous criminal conduct. Discuss the element of injury. 38
  • 38. III. Injury• Actual damages must be established.• If there are no injuries, no damages are due. 39
  • 39. Case: Hiring Practices Injury - INurse hired sight unseen over telephone. Applicant falsely stated in an employee application that he was licensed as an LPN. His license was not verified by the employer. He had committed 56 criminal offenses of theft. He assaulted a resident & broke his leg. What was the injury? 40
  • 40. Case: Hiring Practices Injury - II• The resident suffered a broken leg.• Note: – Hospital vicariously liable for nurse’s conduct. – Criminal charges are applicable in this case against the nurse. What is causation? 41
  • 41. IV. Causation• Reasonable anticipation that harm or injury is likely to result from an act or an omission to act.• Act or conduct in departing from recognized standard of care must be cause of patient’s injury.• Injury must have resulted from breach of duty.• Injury must have been foreseeable. 42
  • 42. Eliminating CausesAnother way to establish the causal relationship between the particular conduct of a defendant and a plaintiff’s injury is through the process of eliminating causes other than the defendant’s conduct. 43
  • 43. Case: Hiring Practices Causation- IThe nurse was hired sight unseen over telephone. Applicant falsely stated in an employee application that he was licensed as an LPN. His license was not verified by the employer. He had committed 56 criminal offenses of theft. He assaulted a resident & broke his leg. 44
  • 44. Case: Hiring Practices Causation Established• Reasonable anticipation that harm or injury was likely to occur. – The patient suffered a broken leg• Departing from recognized standard of care – failure to verify licensure & conduct an adequate background check• Injury resulted from the breach of duty.• Injury was foreseeable. 45
  • 45. Case: Failure to Hydrade Causation• Failure to administer proper hydration. – Not unreasonable to conclude that one’s dehydration can be caused by failing to provide water. Describe what is meant by foreseeability. 46
  • 46. ForeseeabilityReasonable anticipation that harm or injury is likely to result from an act or an omission to act. What is the test for foreseeability? 47
  • 47. Test for ForeseeabilityThe test for foreseeability is whether a person of ordinary prudence and intelligence should have anticipated danger to others caused by his or her negligent act. What is causation? 48
  • 48. Case: Hiring Practices ForeseeabilityA person of ordinary prudence and intelligence should have anticipated the danger to the resident caused by the employer’s negligent act. 49
  • 49. Case: Hot Radiator ForeseeabilityA patient’s left foot came in contact with a radiator and she suffered third-degree burns. The defendant had knowledge of the plaintiff’s condition. The defendant should have shielded the radiator or not placed the plaintiff next to it. 50
  • 50. Cases: Foreseeability• O’Neill v. Montefiore Hospital – 1960 – O’Neil visits ER at 5:00 AM with chest pains.• Niles v. City of San Rafael – 1974 – Kelly Niles suffers head injury.• Hastings v. Baton Rouge Hospital – 1985 – 19 year old with stab wounds to the neck 51
  • 51. Surgery: Sponge & Instrument CountDr. Smith owns the local “Outpatient Surgery Center.” He instructs employees to count all instruments & surgical sponges following a surgical procedure, prior to closing the surgical site. Annie, an employee, failed to conduct the count following Bill’s surgery. Two months later, Bill, suffering from extreme abdominal pain was noted to have several sponges and an instrument in his abdomen. He had developed a massive infection. Will Dr. Smith be liable for Annie’s negligence? 52
  • 52. Decision Sponge & Instrument CountYes, even though Annie had strict instructions to count the sponges & surgical instruments prior to closing the surgical site, she failed to do so. To determine otherwise would undermine the doctrine of vicarious liability, since employers would almost always escape liability by presenting evidence that employees were given careful instructions. 53
  • 53. Failure to Follow InstructionsSarah has a minor surgical procedure under general anesthesia at ABC Surgery Center. She was instructed not to drive home after release. Her daughter Leslie picks her up. On the way home Leslie stops for a donuts. Meanwhile, her mother moves to the driver seat. Upon leaving the parking lot Sarah hits Carol’s car. Carol sustains a broken arm & sues ABC for releasing Sarah before she is completely recovered from the anesthesia. Is ABC responsible for Sarah’s injuries? 54
  • 54. NO!Sarah was negligent. Not the hospital. She failed to adhere to both verbal & written instructions not to drive following anesthesia. It was Sarah’s duty not to drive and her breach of that duty that caused Carol’s injury. 55
  • 55. RememberThe four elements of negligence must be presented in order for the plaintiff to recover damages caused by negligence. 56
  • 56. Intentional Torts• Assault and Battery• False Imprisonment• False Arrest• Defamation of Character• Fraud• Invasion of Privacy• Intentional Infliction of Mental Distress 57
  • 57. Assault and Battery• Assault – deliberate threat, coupled with apparent ability to do physical harm to another. Actual contact not necessary.• Battery – intentional touching of another’s person in socially impermissible manner without person’s consent. 58
  • 58. Assault1. Person attempting to touch another unlawfully must possess apparent present ability to commit battery.2. Person threatened must be aware of or have actual knowledge of an immediate threat of a battery and must fear it. 59
  • 59. Battery• Failure to obtain consent prior to surgery.• Administering blood against patient’s express wishes.• Physically restraining one who refuses to eat. 60
  • 60. False ImprisonmentUnlawful restraint of individual’s personal liberty or unlawful restraining or confining an individual. 61
  • 61. False Imprisonment• Restraining patient without cause.• Locking patient in secluded room for failing to attend therapy session. 62
  • 62. Legal Justification for Restraint or Seclusion• Person represents a danger to self or others.• Criminal conduct.• Persons with highly contagious diseases, as provided by state or federal statutes. 63
  • 63. Reducing Use of Restraints• Development of policies and procedures that conform to state & federal guidelines• Education & orientation of staff• Education for patients & families• Sound appraisal of need for restraints• Application of least restrictive restraints• Continuous monitoring of patients to determine continuing need for restraints 64
  • 64. Defamation of Character• The offense of injuring a person’s character, fame, or reputation by false & malicious statements.• False oral or written communications to someone other than person defamed that tends to hold that person’s reputation up to scorn or ridicule in eyes of others. 65
  • 65. Defamation of Character• Libel – written form of defamation – Signs – Letters – Photographs – Cartoons• Slander – oral form of defamation 66
  • 66. Proof of Defamation• A false & defamatory statement.• Communication of a statement to a person other than the plaintiff.• Fault on the part of the defendant.• Special monetary harm. 67
  • 67. Proof of Harm Not Required to recover damages when:• Accusing a person of a crime.• Accusing a person of having a loathsome disease.• Using words are harmful to to a person’s profession or business.• Calling a woman unchaste. 68
  • 68. Libel – Performance Appraisals• Performance appraisals are not meant for general publication• Appraisal must be published in defamatory manner that injuries one reputation 69
  • 69. CartoonJack draws a cartoon depicting Paul having a rendezvous with a new grad nurse in an empty patient room. The incident in fact never occurred. Is there a defamatory statement here? 70
  • 70. YES!A defamatory statement can take the form of a cartoon because it is capable of adversely affecting a person’s reputation. 71
  • 71. Libel – Newspapers ArticlesNewspaper editorial cartoon depicting 3 persons resembling gangsters in dilapidated building, identified as particular facility that had been closed by state order, was an expression of pure opinion and was protected by 1st Amendment. 72
  • 72. Case: Accused of an AffairNurse Rachet suggests to Dr. Smith that he should leave his wife Sharon because she is having an affair with Dr. Doe. Dr. Smith writes a letter to Mrs. Doe, repeating Rachet’s statement. Assuming Dr. Smith’s letter is defamatory, is it libel or slander? 73
  • 73. Case: Accused of an Affair False Accusation• It is libel, even though Dr. Doe is repeating a slanderous statement.• The reverse is not true – the spoken repetition of a written defamation is still considered libel.• The rule is: once libel, always libel. 74
  • 74. Slander• Person who brings suit must prove special damages.• When defamatory words refer to person in professional capacity, professional need not show that words caused damage. 75
  • 75. Defenses to a Defamation Action• Truth – no liability for defamation if it can be shown that statement is true.• Privilege – Absolute – Qualified 76
  • 76. Absolute Privilege• Statements made during judicial & legislative hearings• Confidential communications between spouses 77
  • 77. Qualified PrivilegeStatements made as result of a legal or moral duty to speak in interests of 3rd persons - Without malice 78
  • 78. Public Figures• Vulnerable to public scrutiny• Suits generally dismissed in absence of – malice – actual knowledge statements are false – recklessness as to truth 79
  • 79. Proof of Fraud• Misrepresentation by the defendant.• Knowledge of falsity.• Intent to reduce reliance on. misrepresentation.• Justifiable reliance by the plaintiff.• Damage to the plaintiff. 80
  • 80. Health Care Fraud• Billing Tradename Drugs/Issuing Generic• Office Visits/Double Billing• Billing for Services not Rendered• Accepting referral fees 81
  • 81. Invasion of Privacy• The right to – be left alone – be free from unwarranted publicity – be free from exposure to public view – be free from unwarranted intrusions into a one’s personal affairs – personal privacy – have records/kept confidential 82
  • 82. Intentional Infliction of Mental DistressConduct that is so outrageous that it goesbeyond bounds tolerated by decent society. 83
  • 83. Mental Distress• Mental suffering includes:• Grief• Shame• Public humiliation• Despair• Shame• Human pride 84
  • 84. Mental Distress• Mother shown premature infant Johnson v. Women’s Hospital)• Verbally abusive physician Greer v. Medders 85
  • 85. Fraud• Willful & intentional misrepresentation that could cause harm or loss to person or property. – e.g., purposeful concealment from patient the presence of surgical sponges in his/her abdomen following surgery 86
  • 86. Strict Liability: ProductsLiability of a manufacturer, seller, or supplier of chattels to a buyer, or other third party for injuries sustained because of a defect in a product. 87
  • 87. Products Liability Legal Theories• Negligence• Breach of warranty – Express – Implied• Strict liability 88
  • 88. Negligence• Duty – Product manufactured by the defendant• Breach – Product defective when it left the manufacturer• Injury – Plaintiff/s injured by the product• Causation – Product proximate cause of injury 89
  • 89. Defective X-ray UnitMindy places Candice-patient on the table of thehospital’s newly manufacturer installed x-rayunit. While in the control room, Mindy hears acrash. She rushes to the patient & finds that asection of the x-ray unit fell on Candice, furtherinjuring her already broken leg. Candice sues themanufacturer for negligence. Can Candice recover damages? 90
  • 90. YES!• Duty – of manufacturer to properly install the x-ray unit.• Breach – failure to properly install the x-ray unit.• Injury – plaintiff suffered injury.• Causation – improper installation was the proximate cause of the plaintiff’s injury. 91
  • 91. Breach of Warranty• Express Warranty: includes specific promises or affirmations made by seller to buyer. – e.g., drug manufacturer represents it product to be free from addiction & is not Crocker v. Winthrop Laboratories 92
  • 92. Breach of Warranty• Implied Warranty: one that exists by operation of the law as a matter of “public policy” for protection of the public. – e.g., consumers have right to assume that food is not contaminated Jacob E. Decker & Sons v. Capps 93
  • 93. Strict Liability• Liability without fault• Elements required to establish strict liability – Product manufactured by defendant – Product defective at time it left manufacturer – Plaintiff injured by product – Defective product proximate cause of injuries 94
  • 94. Wrong Medication – IStanley refills his drug prescription at Discount Drugs, wherehe has been a customer for 10 years. Prior to taking hisnightly dosage he noticed the pill appeared larger thannormal. He phoned Discount Drugs & explained his concern.The Pharmacist assured Stanley generic drugs sometimes arelarger because of formula fillers but that the medicationdosage in his drug was correct. Stanley took the drug & neverwoke up. The dosage given was 5 times that which had beenprescribed. The container from which the pharmacist filledStanley’s prescription had been mislabeled by themanufacturer.Is the pharmacy or manufacturer liable for Stanley’s death? 95
  • 95. Wrong Medication – II– Product was manufactured by the defendant– Product defective at time it left manufacturer • The drug was placed in a mislabeled container.– Plaintiff injured by the product • Stanley passed away in his sleep.– Defective product proximate cause of injuries • The mislabeled container was the proximate cause of Stanley’s death. 96
  • 96. Products Liability & Res Ipsa Loquitur• Must establish – Product did not perform in way intended – Product not tampered with by buyer/3rd parties – Defect existed at time it left defendant 97
  • 97. Products Liability Cases• Manufacture of unsafe drugs – Merck’s Vioxx• Unsafe Design of Anesthesia Machine Airco v. Simmons National Bank, Guardian – 3 Million in punitive damages awarded• Tainted Tylenol Capsules Elsroth v. Johnson & Johnson• Negligent Operation of Bovie Machine Monk v. Doctors Hospital 98
  • 98. Products Liability Defenses 1• Assumption of the Risk – voluntary exposure to risks, such as, radiation therapy & chemotherapy• Intervening Cause – an IV solution contaminated by product user• Disclaimers – manufacturers inserts 99
  • 99. Products Liability –Defenses 2• Contributory Negligence – use of product in a way it was not intended to be used.• Comparative Fault – injury due to concurrent negligence of both manufacturer & plaintiff. 100
  • 100. REVIEW QUESTIONS – I1. Describe the objectives of tort law.2. Discuss the distinctions among negligent torts,intentional torts, and strict liability.3. What forms of negligence are described in thischapter?4. How does one distinguish between negligence andmalpractice? 101
  • 101. REVIEW QUESTIONS – II5. What elements must be proven in order to besuccessful in a negligence suit?6. Can a "duty to care" be established by statute orcontract? Discuss your answer.7. Describe the categories of intentional torts.8. What is the difference between Aaaault andBattery? 102
  • 102. REVIEW QUESTIONS – III9. What is “defamation of character? a. How does slander differ from libel? b. Give an example of each.10. When should a patient be detained in ahospital? 103
  • 103. REVIEW QUESTIONS – IV11. What is Fraud? a. Elements to establish Fraud?12. How can a patient’s privacy be invaded?13.What is the infliction of mental distress? a. Give an example 104
  • 104. REVIEW QUESTIONS – V14. What is products liability? Describe whatlegal theories an injured party may use inproceeding with a lawsuit against a seller,manufacturer, or supplier of goods.15. Describe the defenses often used in aproducts liability case. 105