© 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. Learning Outcomes 5.1Identify 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

© 2013 The McGraw-Hill Companies, Inc. All rights reserved. Learning Outcomes 5.4Explain the four elements necessary to prove negligence (the four Ds). 5.5Outline the phases of a lawsuit. 5.6Name two advantages to alternative dispute resolution. 5-3

© 2013 The McGraw-Hill Companies, Inc. All rights reserved. Liability All competent adults are liable or legally responsible for their actions on the job and in private lives. 5-4

© 2013 The McGraw-Hill Companies, Inc. All rights reserved. Physician Liability as an Employer Grounds and buildings Automobiles Employee safety 5-5

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

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

© 2013 The McGraw-Hill Companies, Inc. All rights reserved. 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. True False 5-8

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

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

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

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

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

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

© 2013 The McGraw-Hill Companies, Inc. All rights reserved. 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. True False 5-15

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

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

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

© 2013 The McGraw-Hill Companies, Inc. All rights reserved. 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. True False 5-19

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

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

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

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

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

© 2013 The McGraw-Hill Companies, Inc. All rights reserved. Damage Awards 5-25

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

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

© 2013 The McGraw-Hill Companies, Inc. All rights reserved. Alternative Dispute Resolution (ADR) Techniques for resolving civil disputes without going to court –Uses neutral mediators or arbitrators 5-28

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