A tort is an act that injures someone in some way, and for which the injured person may sue the wrongdoer for damages. Legally, torts are called civil wrongs, as opposed to criminal ones. (Some acts like battery, however, may be both torts and crimes; the wrongdoer may face both civil and criminal penalties.) (The Lectric Law Library)
DEGREES OF NEGLIGENCE
Ordinary Negligence
Ordinary negligence is a failure to do what a “reasonably prudent person” would or would not do, under the circumstances of the act or omission in question. (Pozgar, 2007) An example of ordinary negligence within the healthcare section would be malpractice cases.
Gross Negligence
Gross negligence is a more serious form of negligence that goes a step further than simple carelessness. While regular negligence is seen as a person or company falling below an expected standard of care, gross negligence is seen as a complete failure to show care that in fact implies recklessness or a willful disregard for safety and human life. (Brent Adams & Associates) Examples include a surgeon amputating the wrong limb or leaving a surgical instrument inside a body cavity of the patient.
ELEMENTS OF NEGLIGENCE
Duty Owed
While there are different levels of duty and situations where a person does not have a duty to another, usually the health care provider has a duty to his patient. All professional health care providers who have a relationship with a patient have a duty to that patient. The patient/health provider relationship is often established when the doctor, nurse, etc. begins treating the patient. This is usually the easiest element to satisfy in a medical malpractice case. The health care provider has a duty to use established standards of care when treating a patient. A health care provider is held to a standard of other providers with similar education and in a similar situation.
Breach of Duty
A health care provider breaches his duty to his patient when he does not act according to standards for his profession. For example, an emergency room doctor may be held to a different standard than a pediatrician who does not have experience treating gunshot wounds or fatal trauma. When a health care provider ignores symptoms he should have recognized, or when a nurse accidentally administers a lethal dose of medication, the standard of care is breached. A doctor is expected to have knowledge that an average person would not have and the doctor is expected to act accordingly.
Causation
The breach of duty, or the act which was not up the standards of care, must be the cause of the resulting injury in order to bring a medical malpractice suit. It is often difficult to detemine what causes an injury or what caused something to go wrong during medical treatment. So many things can go wrong through no one’s fault. It is possible for someone to have surgery and have horrible complications afterward, even though every health care provider did everything according to the standards of medical care.
Damages or Injury
While all of the previous elements might be met in a case, all four elements are necessary to bring a claim for medical malpractice. Damages are not the same as injuries. It is possible for a health care provider to make a mistake while treating a patient resulting in an injury, but if there are no damages, there is no claim. A person may be injured slightly, or may not be any worse off due to the injury because the patient had other injuries. An example of this would be a person with cancer who misses some chemotherapy and dies.
A person would have to prove the wrongful death would not have occurred if the patient had the chemotherapy. While some damages are easy to assess like lost wages or replacement services, some damages are not related to money. Damages can be pain and suffering, or can be a loss of the ability to do things a person could have done if not for the injury. Sometimes damages are difficult to determine without the help of an experienced medical malpractice attorney.
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INTENTIONAL TORT
An intentional tort results when a person intends to do a wrongful act.
Assault and Battery
Assault and battery is actually a combination of two intentional torts. An assault is conduct that places a person in fear of being touched in a way that is insulting, provoking, or physically harmful. Battery is the actual touching. (Showalter, 2007) Examples of assault and battery are performing a procedure on a patient who has refused to give permission; threatening a patient; and improper handling or rough treatment of a patient while providing care.
False Imprisonment
False imprisonment is the unlawful restraint of an individual’s personal liberty or the unlawful restraint or confinement of an individual. To recover damages for false imprisonment, a plaintiff must be aware of the confinement and have no “reasonable” means of escape.
Restraints
A restraint is generally used to control the behaviors of patients when they are disoriented or may cause harm to themselves (e.g., from falling, contaminating wounds, or pulling out intravenous lines) or to others. (Pozgar, 2009) The easiest example of false imprisonment (as well as battery) is to apply restraints to a patient who has no order for restraints. Furthermore, recent court rulings have decided that sometimes, placing a patient in a “Geri Chair” with shoulder/pelvic restraint, plus Geri Chair tray can be considered imprisonment.
Contagious Diseases
Protocols should be instituted for handing patients diagnosed as having contracted a highly contagious disease. Detaining such patients, without statutory protection, constitutes false imprisonment.
Leaving Against Medical Advice
A problem arises when patients, even those of sound mind, insist on leaving the hospital though they are still in need of care. They cannot be held in the hospital against their will because that would constitute false imprisonment. (Cook v. Highland Hospital)
Defamation of Character
Defamation of one’s character is another form of intentional tort and personal injury. Defamation is a communication to someone about another person that tends to hold that person’s reputation up to scorn and ridicule. To be an actionable wrong, defamation must be communicated to a third person; defamatory statements communicated only to the injured party are not grounds for an action.
Libel
Libel is the written form of defamation and may be presented in such forms as signs, photographs, letters, and cartoon illustrations.
Slander
Slander is the verbal form of defamation and tends to form prejudices against the person in the eyes of a third person.
Libel and Slander per se
In a libel or slander per se (on its face) action, a court will presume that certain words and accusations cause injury to a person’s reputation without proof of damages. Words or accusations that require no proof of actual harm to one’s reputation are:
1. accusing someone of a crime;
2. accusing someone of having a loathsome disease;
3. using words that affect a person’s profession or business; and
4. calling a woman unchaste. (Pozgar, 2009)
Defenses Against Defamation of Character
There are ordinarily 6 possible defenses available to a defendant who is sued for libel. (LawInfo)
Truth
This is a complete defense, but may be difficult to prove.
Fair Comment on a Matter of Public Interest
This defense applies to “opinion” only, as compared to a statement of fact. The defendant usually needs to prove that the opinion is honestly held and the comments were not motivated by actual “malice.” Malice means knowledge of falsity or reckless disregard for the truth or falsity of the defamatory statement.
Privilege
The privilege may be absolute or qualified. Privilege generally exists where the speaker or writer has a duty to communicate to a specific person or persons on a given occasion. In some cases the privilege is qualified and may be lost if the publication is unnecessarily wide or made with malice.
Consent
This is rarely available, as plaintiffs will not ordinarily agree to the publication of statements that they find offensive.
Innocent Dissemination
In some cases a party who has no knowledge of the content of a defamatory statement may use this defense. For example, a mailman who delivers a sealed envelope containing a defamatory statement is not legally liable for any damages that come about from the statement.
Plaintiff’s Poor Reputation
Defendant can mitigate (lessen) damages for a defamatory statement by proving that the plaintiff did not have a good reputation to begin with. Defendant ordinarily can prove plaintiff’s poor reputation by calling witnesses with knowledge of the plaintiff’s prior reputation relating to the defamatory content.
Fraud
Fraud is defined as willful and intentional misrepresentation that could cause harm or loss to a person or property. (Pozgar, 2007) To prove fraud, the following facts must be shown:
1. an untrue statement known to be untrue by the party making it and made with the intent to deceive;
2. justifiable reliance by the victim on the truth of the statement; and
3. damages as a result of that reliance. (Pozgar, 2009)
Strict and Product Liability
STRICT LIABILITY
Strict liability is a legal doctrine that makes some persons or entity responsible for damages their actions or products cause, regardless of “fault” on their part. Strict liability often applies when people engage in inherently hazardous activities, such as blasting in a city. If the blasting results in an injury to a person, regardless of how careful the company was, it can be liable for any resulting injuries. (Pozgar, 2007)
PRODUCT LIABILITY
Product liability is the accountability of a manufacturer, seller, or supplier of chattel to a buyer or other third party for injuries sustained because of a defect in a product. An injured party may proceed with a lawsuit under three legal theories: a) negligence, b) breach of warranty (implied or express), and c) strict liability. (Pozgar, 2009)
Liability Defenses
Assumption of Risk
Assumption of risk is the “voluntary” exposure to such risks as radiation treatments and chemotherapy treatments.
Intervening Cause
An intervening cause is relevant when the product user, and not the manufacturer, is responsible for contaminating or damaging a product which ends up injuring the product user.
Contributory Negligence
Contributory negligence is the use of a product in a way that it was not intended to be used.
Comparative Fault
Comparative fault is the result of the concurrent negligence of both the manufacturer and the plaintiff.
Disclaimers
Manufacturer’s inserts and warnings regarding usage and contraindications of their products.
Ashley, R. C. (2004). The fourth element of negligence. Critical Care Nurse, 24(4), 78-79.
Calfee, B. E., Follows, J. M., Maher, V. F. and Spital, J. K. (2000, August). Bypassing consent. Nursing, 30(8), 80.
Castaneda, R. (2000). Amputee wins $5.4 million in suit against hospital. The Washington Post. Washington, D.C.: March 16, 2000. p. B.02. Medical Treatment and Labor Act in Florida. Retrieved from http://library.findlaw.com/2000/Aug/1/127864.html.
Smith, A. (2009). Hospital sued over care of preemie in 2003: Mom says actions led to amputation of toes. McClatchy – Tribune Business News.
Websites
Brent Adams & Associates. Retrieved from http://www.brentadams.com/library/what-is-negligence-what-is-gross-negligence.cfm.
Centers for Medicare and Medicaid Services (2006). EMTALA. Retrieved from http://www.cms.hhs.gov/EMTALA/.
LawInfo. Retrieved from http://resources.lawinfo.com/en/Legal-FAQs/Defamation-of-Character/Federal/what-defenses-may-be-available-to-someone-who.html.
MedicalMalpractice.com “Elements of a Medical Malpractice Case”. Retrieved from http://www.medicalmalpractice.com/filing-negligence-claim/elements-medical-malpractice-case.htm.
The Lectric Law Library. Retrieved from http://lectlaw.com/def2/t032.htm.
Optional Reading
Cook v. Highland Hospital, 168 N.C. 250, 84 S.E. 352 (1915); see, generally, False Imprisonment in Nursing Home, 4 A.L.R.2d 449.
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