Hm300 week 3 part 1 of 2

1. © 2017 American Health Information Management Association© 2017 American Health Information Management Association
Chapter 6: Tort Law
Fundamentals of Law for Health
Informatics and Information
Management, Third Edition

2. © 2017 American Health Information Management Association
Torts
• Tort: A civil wrong
• Liability: A legal obligation or responsibility
by a party in a lawsuit
• Tortfeasor: Person who commits a tort
• Most healthcare lawsuits are based on
torts

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Torts (continued)
• Torts can be broadly divided into wrongs
committed against
– A person
– Personal property
– Real property
• Torts are most commonly classified as:
– Intentional torts
– Unintentional torts (negligence)
– Strict liability

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Torts: Intentional
• Intentional torts
– Battery: Intentional, nonconsensual contact
– Assault: Conduct causing apprehension of
harmful or offensive contact
– False imprisonment: Intentional confinement
against a person’s will
– Intentional infliction of emotional distress:
Intentional conduct resulting in extreme
emotional distress

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Torts: Intentional (continued)
• Defenses to intentional torts:
– Consent by the plaintiff
– Privilege by virtue of plaintiff-defendant
relationship
– Necessity (e.g., self defense)

6. © 2017 American Health Information Management Association
Torts: Negligence
• Negligence: Unintentional conduct involving acting or
failing to act as a reasonably prudent person would,
resulting in harm or injury to another
– Is based on standard of care: What an individual is
expected to do or not do in a particular situation
• Standard of care is established by statue or ordinance, judicial
decision, professional association, practice
• Negligence is the basis for most medical malpractice
(professional misconduct) cases, but medical
malpractice can be based on intentional tort or
contract
– Negligent infliction of emotional distress can accompany
negligence as a cause of action

7. © 2017 American Health Information Management Association
Torts: Negligence (continued)
• Types of negligence
–Nonfeasance: Failure to perform an act
–Misfeasance: Improper performance of
an act
–Malfeasance: Performance of a wrongful
act that may be unlawful

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Torts: Negligence (continued)
• Degrees of negligence
–Ordinary: Failure to exercise ordinary
care
–Gross: Very great or excessive
negligence; extreme departure from the
ordinary standard of care; reckless
disregard

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Torts: Negligence (continued)
• Elements of negligence (to prove negligence):
– Duty of care
– Breach of duty
– Injury (resulting from breach)
– Causation (connection between the defendant’s
breach and the plaintiff’s injury). Two types:
• Actual (cause-in-fact): “But-for” the defendant’s conduct, the
result would not have happened.
• Proximate: Foreseeability

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Torts: Damages
• Damages: Compensate a plaintiff for physical and
monetary injuries
– Nominal: To recognize wrongdoing; little to no dollar
amount
– Compensatory: Compensate plaintiff for losses
• Economic (special): Tangible losses resulting from the
circumstances (e.g., medical bills; lost wages)
• Non-economic (general): Intangible loss (e.g., emotional
distress)
– Punitive: Beyond compensatory damages; intended to
punish or deter conduct (e.g., reckless or egregious)

11. © 2017 American Health Information Management Association
Torts: Negligence
• Plaintiff generally has the burden of proof to prove all
elements of negligence
• Exception: Res ipsa loquitur (the thing speaks for
itself)
– Circumstances accompanying injury may permit inference
of defendant’s negligence
– Elements
• 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

12. © 2017 American Health Information Management Association
Torts: Negligence (continued)
• Defenses
– Contributory negligence: Bars a plaintiff from
recovering any damages if defendant proves plaintiff’s
contributed in any part to the injury
– Comparative negligence: Plaintiff’s recovery is
reduced based on his or her percentage of
negligence that contributed to the injury
• Pure: Recovery based on actual percentages
• Partial (modified): Recovery permitted only if plaintiff is
not more negligent than the defendant (i.e., plaintiff
cannot be >50% negligent)

13. © 2017 American Health Information Management Association
Torts: Negligence (continued)
• Defenses
– Assumption of risk: Bars a plaintiff from
recovering on negligence claim if defendant
proves that plaintiff
• Had actual knowledge of a danger
• Understood and appreciated the risks associated with
the danger
• Voluntarily exposed himself or herself to those risks
– Usually not a good defense in medical cases
because people seek medical care out of need
instead of true voluntariness

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Torts: Negligence (continued)
• Other defenses
– Sudden emergency doctrine
– Unavoidable accident
– Act of God
– Rescue doctrine

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Torts: Theories of Healthcare
Organization Negligence
Liability
• Charitable immunity eliminated as a theory
to protect hospitals from liability
– Darling v. Charleston Memorial Community
Hospital (Illinois Supreme Court 1965)

16. © 2017 American Health Information Management Association
Torts: Theories of Healthcare
Organization Negligence
Liability
• Corporate negligence (primary liability):
organization is liable for negligence in its own
right
• Respondeat superior/vicarious liability
(secondary liability): organization is liable to
patients for torts conducted by its employees
and, increasingly, contractors
– Applies to those acting “within the scope” of their
duties

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Torts: Strict Liability
• Third tort classification
• Liability without fault
• Applies liability for loss due to one’s acts
or omissions regardless of fault
• Most common application of the doctrine
has been in areas of abnormally
dangerous activities or product liability
cases

18. © 2017 American Health Information Management Association
Torts: Improper Disclosure of
Health Information
• Defamation of character: False communication about a person to
another, harming the person’s reputation
– Slander = oral
– Libel = written
• Must prove
– Defendant made a false and defamatory statement about the plaintiff.
– Statement was not privileged (i.e., made in good faith to persons with a
legitimate reason to know)
– Statement was published (made) to a third person.
– Conduct was negligence or a higher degree of intent
– Actual or presumed damages resulted (proof of monetary damages not
required in cases such as wrongful accusations of crimes, loathsome
diseases, one’s profession, or a woman’s chastity)

19. © 2017 American Health Information Management Association
Torts: Improper Disclosure of
Health Information (continued)
• Defamation defenses
– Truth—The statement was true
– Privilege—Communication was made in good
faith at an appropriate time and manner to
those with a legitimate reason to receive the
communication
– Authorization for the disclosure of information
– Lack of publication to a third party

20. © 2017 American Health Information Management Association
Torts: Improper Disclosure of
Health Information (continued)
• Invasion of privacy—Intrusion upon one’s
right against unwarranted publicity and
exposure
• Elements
– Duty to not invade the privacy of or disclose
confidential medical information of a patient
– Breach of duty
– Damages from the breach

21. © 2017 American Health Information Management Association
Torts: Improper Disclosure of
Health Information (continued)
• Invasion of privacy defenses
– Patient authorization
– Privilege (legitimate interests served by disclosure or
other action)
– Waiver (patient made facts public or otherwise placed
medical condition at issue)
• Courts may make exceptions in cases of public
figures and individuals in newsworthy situations
– News event may be disclosed, but identity of
individual is protected

22. © 2017 American Health Information Management Association
Torts: Improper Disclosure of
Health Information (continued)
• Breach of confidentiality: Unauthorized disclosure
of a person’s private information
• Based on fiduciary duty: Obligation to act in
another’s best interests due to a special
relationship of trust, confidence, or responsibility
• 3 elements:
– Existence of a duty to not disclose health information
– Breach of the duty
– Damages
• Defenses to breach of confidentiality: Same as
invasion of privacy

23. © 2017 American Health Information Management Association
Torts: Improper Disclosure of
Health Information (continued)
• Infliction of emotional distress: Improper
disclosure caused emotional harm or injury
– Defendant negligently, recklessly, or intentionally
engaged in “extreme and outrageous conduct”
• Required to prove
– Defendant should have realized that his conduct
involved an unreasonable risk of causing the
distress
– From the facts known, defendant should have
realized that the distress might result in illness or
bodily harm

24. © 2017 American Health Information Management Association
Torts: Improper Disclosure of
Health Information (continued)
• Negligence: Improper disclosure may be
analyzed through simple negligence
inquiry
• Malpractice statutes: Exist in some states
to support wrongful disclosure actions
• Liability for improper disclosure can also
result via HIPAA and other federal and
state privacy laws

25. © 2017 American Health Information Management Association
Immunity From Liability
• Immunity: Protects certain persons or
groups from tort
– Is not based on lack of wrongdoing
– Is based on status or position of defendant
• E.g., limited governmental immunity
• Good Samaritan statutes

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Statute of Limitations
• Are statutory enactments that place time
limits on certain claims
• Purpose:
– Allows injured 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 is complete
– Time of last exposure for ongoing injury

27. © 2017 American Health Information Management Association
Statute of Limitations
(continued)
• Period of limitation may be tolled (suspended)
for reasons such as
– Injury reasonably not discovered
– Injured individual dies; executor sues
– Removal of individual’s disability
– Tortfeasor concealed wrongdoing
– Minor reaches age of majority
• Statute of repose
– Maximum time in which a lawsuit can be brought

28. © 2017 American Health Information Management Association
Contracts vs. Torts
• A basis for medical malpractice or
business/commercial conflicts
• 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

29. © 2017 American Health Information Management Association
Criminal Liability in Healthcare
• Wrongdoing in healthcare context
generally leads to civil liability
• Criminal penalties in healthcare can
relate to many areas including
violations of
– HIPAA Privacy Rule
– Antitrust
– Healthcare fraud

30. © 2017 American Health Information Management Association
Medical Malpractice Issues
• Medical malpractice insurance (to protect
professionals against medical malpractice
lawsuits) at times experiences
unsustainable premium increases
– Medical malpractice crisis

31. © 2017 American Health Information Management Association
Tort Reform Measures
• Tort reform measures are enacted to control costs and
perceived injustices associated with tort claims
• Types of tort reform measures
– Caps on noneconomic and punitive damages
– Affidavits of merit
– Limits on attorney contingency fees
– Collateral source payment
– Structured settlements
– Limits on statute of limitations periods
– Joint and several liability
– No-fault systems