1. Professional Liability and Medical Malpractice Chapter 6 2006 Pearson Education, Inc Pearson Prentice Hall Upper Saddle River, NJ 07458 Medical Law and Ethics, Second Edition Bonnie F. Fremgen

2. Professional Negligence and Medical Malpractice Malpractice: professional misconduct or demonstration of an unreasonable lack of skill with the result of injury, loss, or damage to the patient Negligence: unintentional action that occurs when a person performs or fails to perform an action that a reasonable person would or would not have committed in a similar situation

3. The Tort of Negligence Malfeasance: performing a wrong or illegal act Misfeasance: improperly performing an otherwise proper or lawful act Nonfeasance: failure to perform a necessary action

4. Four Ds of Negligence Duty: responsibility established by physician–patient relationship Dereliction: neglect of duty Direct Cause: continuous sequence of events, unbroken by any intervening cause, that produces injury and without which injury would not have occurred Damages: injuries caused by the defendant

5. Res Ispa Loquitur The thing speaks for itself” Three conditions must be present: – Injury could not have occurred without negligence – Defendant had direct control over cause of injury – Patient did not and could not contribute to the injury

6. Damages Compensatory damages: court-awarded payment to make up for loss of income or emotional pain and suffering Punitive or exemplary damages: monetary award by court to person harmed in malicious and willful way; meant to punish offender Nominal damages: slight or token payment awarded by court

7. Fraud Fraud: the deliberate concealment of facts from another person for unlawful or unfair gain One of the fastest-growing criminal areas in health care Medical assistants have been involved in several fraud cases in the medical office: none have been charged so far

8. Defense to Malpractice Suits Affirmative defenses: denial, assumption of risk, contributory negligence, comparative negligence, borrowed servant, statute of limitations, and res judicata Allow defendant to present evidence that patient’s condition was the result of factors other than negligence

9. Denial Defense Plaintiff must prove defendant did wrongful or negligent act Most common defense Jury must determine if defendant caused injury May bring in expert witnesses

10. Assumption of Risk Prevents plaintiff from recovering damages if plaintiff voluntarily accepts a risk associated with the activity Plaintiff must know and understand risk involved, and choice to accept risk must be voluntary Should have signature to document that patient authorizes procedure, understands the risks, and consents to treatment

11. Contributory Negligence Conduct on part of plaintiff that contributes to cause of injuries Complete bar to recovery of damages

12. Comparative Negligence Similar to contributory negligence Plaintiff’s own negligence helped cause injury Not complete bar to recovery of damages Allows plaintiff to recover damages based on the amount of defendant’s fault

13. Borrowed Servant Special application of respondeat superior Employer lends an employee to someone else Employee remains “servant” of employer, but employer is not liable for any negligence caused by employee while in service of temporary employer

14. Ignorance of Facts and Unintentional Wrongs Health care professional should understand what is right and wrong under law Arguing that a negligent act is unintentional is not a defense

15. Statute of Limitations Set time period for injured party to file lawsuit Exception is rule of discovery Statute of limitations does not begin to “run” until injury is discovered Will not begin to “run” if fraud (deliberate concealment of facts from patient) is involved

16. Res Judicata “The thing has been decided” or “a matter decided by judgment” Once court decides case, plaintiff cannot bring new lawsuit on same subject

17. Professional Liability Civil liability cases – Physician may be sued under a variety of legal theories Physical conditions of the premises – Institution may be liable when regulatory standards have been violated Promise to cure – Considered under contract law Law of agency – Legal relationship formed when one person agrees to perform work for another Who is liable? – Employer may not have done anything wrong, yet still be liable

18. Liability Insurance Claims-made insurance: covers insured party for claims made only during the time period policy was in effect Occurrence insurance: covers the insured party for all injuries and incidents that occurred while policy was in effect regardless of when claim is made

19. Malpractice Insurance Covers any damages the physician/employer must pay if they are sued for malpractice and lose All licensed medical professionals should carry malpractice insurance An expensive type of insurance

20. Arbitration Alternative Dispute Resolution (ADR): method other than court to settle disputes – Arbitration: settling dispute without judge; decision is binding – Meditation: opinion of third party for nonbinding decision – Med-arb: combination of the two

21. Liability of Other Health Professionals Paramedic Pharmacist Physical therapist Respiratory assistant Dental assistant Laboratory technician Nurse Nursing assistant Medical assistant

22. Malpractice Prevention General guidelines Safety Communication Documentation