© 2013 The McGraw-Hill Companies, Inc. All rights reserved. Ch 5 Professional Liability and Medical Malpractice

© 2013 The McGraw-Hill Companies, Inc. All rights reserved.

Ch 5Professional Liability and

Medical Malpractice


Learning Outcomes

5.1 Identify three areas of general liability for which a physician/employer is responsible.

5.2 Describe the reasonable person standard, standard of care, and duty of care.

5.3 Briefly outline the responsibilities of health care practitioners concerning privacy, confidentiality, and privileged communication

5-2


Learning Outcomes

5.4 Explain the four elements necessary to prove negligence (the four Ds).

5.5 Outline the phases of a lawsuit.5.6 Name two advantages to alternative

dispute resolution.

5-3


Liability

• All competent adults are liable or legally responsible for their actions on the job and in private lives.

5-4


Physician Liability as an Employer

• Grounds and buildings• Automobiles• Employee safety

5-5


Standard and Duty of Care

• Standard of care– Level of performance expected of health

care worker carrying out duties• Duty of care

– Obligations of health care workers to patients/nonpatients

5-6


Reasonable Person Standard

• The standard of behavior that judges a person’s actions in a situation according to what a reasonable person would or would not do in the same circumstance

5-7


Question

Tell whether the following statement is true or false.A specialist is held to the same standard of care as that expected of a general practitioner. TrueFalse

5-8


Answer

FalseA specialist is held to a higher standard of care than that expected of a general practitioner. The standard of care for a specialist is generally the same as those for like specialists, wherever they practice.

5-9


Guidelines for Health Care Practice

• Practice within scope of training.• Use professional title commensurate

with education and experience.• Maintain confidentiality.• Prepare and maintain health records.• Document accurately.• Use appropriate ethical and legal

guidelines for patient information.

5-10


Guidelines for Health Care Practice

• Follow employer’s established policy.• Follow appropriate legal guidelines.• Maintain and dispose of controlled

substances properly.• Follow risk management protocols.• Meet requirements for credentialing.• Help develop and maintain policies.

5-11


Confidentiality

• The act of holding information in confidence, not to be released to unauthorized individuals–Privileged communication

• Information held confidential within a protected relationship

5-12


Waiving Confidentiality

• A third party requests a medical examination for employment– That party pays physician fees

• A patient sues a physician for malpractice and records are subpoenaed

• A waiver has been signed by patient allowing release of information

5-13


Unintentional Tort of Negligence

• Any deviation from the accepted medical standard of care causing injury to the patient – Basis for professional malpractice

claims– Most common liability in medicine

5-14


Question

Tell whether the following statement is true or false.A nurse fails to call a code blue in a timely manner for a patient in cardiac arrest who consequently suffers brain damage. This nurse is guilty of misfeasance.TrueFalse

5-15


Answer

FalseA nurse who fails to call a code blue in a timely manner for a patient in cardiac arrest is guilty of nonfeasance (The failure to act when one should). Misfeasance is the performance of a lawful act in an illegal or improper manner.

5-16


Four Elements to Prove Negligence

• Duty– The person charged owed a duty of care

to the accuser.• Dereliction

– The health care provider breached the duty of care to the patient.

5-17


Four Elements to Prove Negligence

• Direct cause– The breach of duty of care to the patient

caused the injury.• Damages

– There is a legally recognizable injury to the patient.

5-18


Question

Tell whether the following statement is true or false.When a plaintiff sues a health care practitioner (defendant) for negligence, the burden of proof is on the plaintiff. TrueFalse

5-19


Answer

TrueWhen a plaintiff sues a health care practitioner (defendant) for negligence, the burden of proof is on the plaintiff. It is up to the accuser’s attorney to present evidence of the four Ds.

5-20


Joint Commission Patient Safety

• Improve accuracy of patient identification

• Improve effectiveness among caregivers

• Improve safety of using high-alert medications

• Eliminate wrong-site, wrong-patient, wrong-procedure surgery

5-21


Joint Commission Patient Safety

• Improve safety of infusion pumps• Improve effectiveness of clinical

alarm systems• Reduce the risk of health care

acquired infections

5-22


Doctrine of Common Knowledge

• Res ipsa loquitur (The thing speaks for itself -- negligence is obvious)– Three conditions must occur:

• The act must be under defendant’s control.• The patient must not have contributed to

the act.• It must be apparent that the patient would

not have been harmed if reasonable care were used.

5-23


Cases of Res Ipsa Loquitar

• Leaving foreign objects in patient’s body during surgery

• Accidentally burning or injuring a patient while he is anesthetized

• Damaging healthy tissue during surgery

• Causing an infection by using unsterilized instruments

5-24


Damage Awards5-25


Phases of a Lawsuit

• Pleading phase– Summons is issued

• Interrogatory or pretrial discovery phase– Subpoena and deposition may occur

• Trial phase• Appeals phase

5-26


Witness Testimony

• Fact–Witness provides facts he or she

has observed.• Expert

–Experts in particular fields have the education, skills, knowledge, and experience to give expert witness.

5-27


Alternative Dispute Resolution (ADR)

• Techniques for resolving civil disputes without going to court–Uses neutral mediators or

arbitrators

5-28


Arbitration

• Method of settling disputes in which opposing parties agree to abide by the decision of an arbitrator–An arbitrator is chosen by the court

or by the American Arbitration Association; or

–Each party selects an arbitrator and the two arbitrators select a third

5-29

Documents

© 2013 The McGraw-Hill Companies, Inc. All rights reserved. Ch 5 Professional Liability and Medical Malpractice