TORT LAW

DUTY The legal obligation to perform …as dictated by condition of employment or statute.

DUE CARE Reasonable care under the circumstances. Higher duty.

NEGLIGENCE Omission or commission of an act that a reasonably prudent person would or would not do under given circumstances. It is a form of carelessness that constitutes a departure from the standard of care generally imposed on members of society.

FORMS OF NEGLIGENCE  MALFEASANCE: execution of an unlawful or improper act (e.g. administering contraindicated medication.)  MISFEASANCE: improper performance of an act, resulting in injury to another (e.g. administration of the wrong medication, bathing a patient in scalding hot water.)

FORMS OF NEGLIGENCE  NONFEASANCE: failure to act, when there is a duty to act, as a reasonably prudent person would in similar circumstances (e.g. failing to order diagnostic tests or prescribe medications that should have been ordered or prescribed under the circumstances.)

FORMS OF NEGLIGENCE  MALPRACTICE: negligence or carelessness of a professional person (e.g. a nurse, pharmacist, physician, accountant.)  CRIMINAL NEGLIGENCE: reckless disregard for the safety of another (i.e. willful indifference to an injury that could follow an act.)

DEGRESS OF NEGLIGENCE  ORDINARY NEGLIGENCE: failure to do what a reasonably prudent person would do, or the doing of that which a reasonably prudent person would not do, under the circumstances of the act or omission in question.  GROSS NEGLIGENCE: intentional or wanton omission of care that would be proper to provide or the doing of that which would be improper to do.

LIABILITY A determination at the conclusion of a legal process that a person has been negligent, that negligence caused injury to another person, and that the negligent person must compensate the injured person for his injury or loss.

CAUSE OF ACTION OR PRIMA FACIE CASE 4 D’S 1. Duty owed (Due Care) 2. Duty Breached (by being negligent) a. Malfeasance b. Nonfeasance 3. Damages (Injury) 4. Direct Cause or Proximate Cause (by defendant’s negligence) defendant’s negligence) a. Substantial Factor Test

Foreseeability, as an element of negligence, is the reasonable anticipation that harm or injury is likely to result from an act or an omission to act.

INTENTIONAL TORTS ASSAULT: threat to do harm BATTERY: un-consented touching

INTENTIONAL TORTS FALSE IMPRISONMENT ABANDONMENT Continuity of care

INTENTIONAL TORTS DEFAMATION OF CHARACTER Libel-writtenSlander-oral

DEFENSES TO A DEFAMATION ACTION 1. TRUTH 2. PRIVILEGE AbsoluteQualified 3. FRAUD 4. INVASION OF PRIVACY HIPAAhttp://

HIPAA PATIENT RIGHTS AT A GLANCE 1. Right to request restriction of uses and disclosures. 2. Right to receive confidential communications. 3. Right of access to information. 4. Right to amend information. 5. Right to accounting of disclosures.

INTENTIONAL TORTS FRAUD 1. Willful, intentional 2. Misrepresentation 3. Untrue 4. Loss or Harm

PRIVACY

INTENTIONAL INFLICTION OF MENTAL DISTRESS Conduct that is so outrageous that it goes beyond the bounds tolerated by a decent society. Mental Distress - mental suffering resulting from painful emotions such as grief, public humiliation, despair, shame, and wounded pride. Know or should have known...

PRODUCTS LIABILITY Injury as a result of defect in product. Three legal theories: 1. Negligence 2. Breach of Warranty a. Expressed b. Implied 3. Strict liability

PRODUCTS LIABILITY DEFENSES Contributory Negligence Assumption of risk Intervening cause Disclaimers

TYPES OF DAMAGES  NOMINAL: “Token Compensation” Plaintiff proved case Actual loss or injury not possible to prove  COMPENSATORY: “Actual Damages”  GENERAL : pain, suffering, loss of limb  SPECIAL : medical expenses, sick pay, lost wages, travel to doctor  PUNITIVE (EXEMPLARY):Wanton, reckless, total disregard, caused injury.

TYPES OF DAMAGES CONTINUED  PUNITIVE (EXEMPLARY): Wanton, reckless, total disregard, caused injury.

Intentional Torts Torts of Negligence  Criminal * Civil  Criminal Intent* Negligence ( carelessness)  Public (state) * Individual  Imprisonment/fines* Redress (damages)  Conscious & deliberate*Unreasonable  Statutes*Standard of Care *Community Rule

CHARTER STATE STATUTES Medical Staff GOVERNING BOARD SCOPE OF AUTHORITY Expressed Authority Implied Power By-Laws Standard of Care Legislation and Regulation Administration