Unit 2

Tort Law

Negligence Conduct lacking in due care

Carelessness

Deviation from standard of care that a reasonable person would use in a particular set of circumstances

Doing something that the reasonable and prudent person would not do

Applies to professionals as well as other non-professionals

Malpractice Tortfeasor (person committing civil wrong) must be a

professional

Professional misconduct

Unreasonable lack of skill or fidelity in professional or judiciary duties

Evil practice

Illegal or immoral conduct

Malpractice Continued Results in injury or unnecessary suffering or death of

patient

Proceeds from ignorance, carelessness, want of professional skill, disregard of established rules and principles, neglect, or a malicious or criminal intent

Establishment of Liability Duty owed the patient: reliance relationship, care owed of

reasonably prudent nurse judged by expert testimony, published standards, and common sense

Breach of the duty owed the patient - deviation from standard care

Foreseeability: what reasonably could be expected

Establishment of Liability Continued Causation: cause in fact - breach of duty owed caused

injury; proximate cause - how far liability extends for consequences of action

Injury - physical, emotional, financial

Damages: general damages inherent in case; special damages such as losses, expenses; emotional damage; punitive damage

Doctrine of Res Ipsa Loquitor - Let the thing speak for itself Doctrine allows a negligence cause of action without all

six elements

Must prove causation, injury, damages

Used in cases where, for example, patient was unconscious in surgery

Intentional Torts Tort: civil wrong committed against a person or person’s

property

Not based on contracts

Three elements

• Volitional act by the defendant (not omission)

• Intent to bring about consequences or appear to have intended to bring about consequences

• Causation - act must be substantial factor in bringing about injury or consequences (damages need not be incurred)

Examples of Torts Intentional torts: assault, battery, false imprisonment,

conversion of property

Quasi-intentional torts: defamation of character, invasion of privacy

Assault Apprehension of unwarranted touching

Battery Harmful or unwarranted contact with the plaintiff-patient

Single touch sufficient for tort

No harm or injury need occur to the patient

Patient need not be aware

Causation through direct or indirect contact-example: nurse dropping a tray

Unwarranted touching of patient belongings

Lack of consent most common cause

False Imprisonment Unjustifiable detention of person without legal warrant to

confine person

Must be knowledge of imprisonment by patient for it to occur

Incompetent, mentally ill, or persons posing a threat to society may be detained against will

Conversion of Property Interference with right to possession of patient’s property

Need to have adequate justification of action

Intentional Infliction of Emotional Distress Professional conduct goes beyond that tolerated by

society

Conduct calculated to cause mental distress

Conduct causes mental distress

Invasion of Privacy Unreasonable unwarranted interference with individual's

solitude

Patient has right against 1) Appropriation of plaintiff’s name or picture for defendant’s sole advantage; 2) Intrusion by defendant upon patient’s seclusion or affairs; 3) Publication by the defendant of facts that place the patient in a false light; 4) Public disclosure of private facts about the patient by hospital staff or medical personnel

Defamation Comprised of slander (oral) and libel (written)

Wrongful injury to another’s reputation

Five elements

- Defamatory language that adversely affects reputation

- Defamatory language concerning living person

- Publication to a third party or several persons

- Damage to person’s reputation

- Fault on part of defendant in writing or telling another the defamatory language

Defenses against intentional torts Consent or implied by law through:

prevention of loss of life or limb; person incapable; no reasonable reason to believe consent would not be given; reasonable person in similar circumstances would give consent

Truth in defamation cases

Defenses Against Torts Continued Privilege: to protect public and private interests.

example - recommendation from former to prospective employer; appropriate channels used; truthful; objective terms

Disclosure Statutes: reporting of information for health reasons

Intentional torts mitigated by retraction, if provoked

Defenses to Nonintentional Torts Release: only compensated for negative action

Contributory negligence: patient contributes to negative action

Assumption of risk: plaintiff understood and is partially responsible

Immunity Statutes: example - Good Samaritan Law

Statute of Limitation In most states, 2 to 4 years, or with a child, until age of

maturity

In North Carolina, 3 years for most cases

Informed Consent Expressed or implied: written or oral, complete or partial

Major exceptions: emergency, therapeutic privilege, patient waiver, prior patient knowledge or common knowledge

Other exceptions: preservation of life, protection of minors, prevention of self destruction, maintenance of ethical integrity, protection of public’s health