1. Professional Liability and Medical Malpractice
Ch 5
Professional Liability and Medical Malpractice

2. Key Terms alternative dispute resolution (ADR) confidentiality damages
deposition
duty of care
interrogatory
liable
malfeasance
misfeasance
nonfeasance
privileged communication
reasonable person standard
res ipsa loquitur
standard of care
subpoena
subpoena duces tecum
summons
testimony
wrongful death statutes
LO 5.1 Identify three areas of general liability for which a physician/employer is responsible.
LO 5.2 Describe the reasonable person standard, standard of care, and duty of care.
LO 5.3 Briefly outline the responsibilities of health care practitioners concerning privacy, confidentiality, and privileged communication.
LO 5.4 Explain the four elements necessary to prove negligence (the four Ds).
LO 5.5 Outline the phases of a lawsuit.
LO 5.6 Name two advantages to alternative dispute resolution.

3. 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.
LO 5.1 Identify three areas of general liability for which a physician/employer is responsible.
LO 5.2 Describe the reasonable person standard, standard of care, and duty of care.
LO 5.3 Briefly outline the responsibilities of health care practitioners concerning privacy, confidentiality, and privileged communication.

4. Learning Outcomes (cont.)
5-4
Learning Outcomes (cont.)
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.
LO 5.4 Explain the four elements necessary to prove negligence (the four Ds).
LO 5.5 Outline the phases of a lawsuit.
LO 5.6 Name two advantages to alternative dispute resolution. 4

5. Liability
All competent adults are liable, or legally responsible, for their actions on the job and in private life
LO 5.1 Identify three areas of general liability for which a physician/employer is responsible.

6. Physician Liability as an Employer
5-6
Physician Liability as an Employer
Grounds and buildings
Automobiles
Employee safety
LO 5.1 Identify three areas of general liability for which a physician/employer is responsible. 6

7. Standard and Duty of Care
5-7
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/non-patients
LO 5.2 Describe the reasonable person standard, standard of care, and duty of care. 7

8. Reasonable Person Standard
5-8
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 circumstances
LO 5.2 Describe the reasonable person standard, standard of care, and duty of care. 8

9. Guidelines for Health Care 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
LO 5.2 Describe the reasonable person standard, standard of care, and duty of care. 9

10. Guidelines for Health Care Practice
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
LO 5.2 Describe the reasonable person standard, standard of care, and duty of care. 10

11. 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
LO 5.3 Briefly outline the responsibilities of health care practitioners concerning privacy, confidentiality, and privileged communication. 11

12. Maintaining Confidentiality
5-12
Maintaining Confidentiality
Obtain signed consent
Avoid judgments about patients’ morals
Financial information is also confidential
While on the phone, do not use patient’s name if others are around
Use caution when leaving messages on voic
Keep patient information out of sight from other patients or visitors
Make only legal exceptions to disclosure
LO 5.3 Briefly outline the responsibilities of health care practitioners concerning privacy, confidentiality, and privileged communication. 12

13. Unintentional Tort of Negligence
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
LO 5.4 Explain the four elements necessary to prove negligence (the four Ds). 13

14. Professional Liability Claims
5-14
Professional Liability Claims
Malfeasance
- Performance of a totally wrongful and unlawful act
Misfeasance
Performance of a lawful act in an illegal or improper manner
Nonfeasance
- The failure to act when one should
LO 5.4 Explain the four elements necessary to prove negligence (the four Ds). 14

15. Four Elements to Prove Negligence
5-15
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
Direct cause
The breach of duty of care to the patient caused the injury
Damages
There is a legally recognizable injury to the patient
LO 5.4 Explain the four elements necessary to prove negligence (the four Ds). 15

16. The Joint Commission (TJC)
5-16
The Joint Commission (TJC)
Improve accuracy of patient identification
Improve effectiveness of communication among caregivers
Improve safety of using high-alert medications
Eliminate wrong-site, wrong-patient, wrong-procedure surgery
LO 5.4 Explain the four elements necessary to prove negligence (the four Ds). 16

17. The Joint Commission (TJC) (cont.)
5-17
The Joint Commission (TJC) (cont.)
Improve safety of infusion pumps
Improve effectiveness of clinical alarm systems
Reduce the risk of health care acquired infections
LO 5.4 Explain the four elements necessary to prove negligence (the four Ds). 17

18. Doctrine of Common Knowledge
5-18
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
LO 5.4 Explain the four elements necessary to prove negligence (the four Ds). 18

19. Cases of Res Ipsa Loquitar
5-19
Cases of Res Ipsa Loquitar
Leaving foreign objects in patient’s body during surgery
Accidentally burning or injuring a patient while he/she is anesthetized
Damaging healthy tissue during surgery
Causing an infection by using unsterilized instruments
LO 5.4 Explain the four elements necessary to prove negligence (the four Ds). 19

20. 5-20
Damage Awards
LO 5.4 Explain the four elements necessary to prove negligence (the four Ds). 20

21. Phases of a Lawsuit Pleading phase
5-21
Phases of a Lawsuit
Pleading phase
Summons is issued
Interrogatory or pretrial discovery phase
Subpoena and deposition may occur
Trial phase
Appeals phase
LO 5.5 Outline the phases of a lawsuit. 21

22. Types of Witness Testimony
5-22
Types of 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
LO 5.5 Outline the phases of a lawsuit. 22

23. Alternative Dispute Resolution (ADR)
5-23
Alternative Dispute Resolution (ADR)
Techniques for resolving civil disputes without going to court
Uses neutral mediators or arbitrators
Two types
Mediation
Arbitration
LO 5.6 Name two advantages to alternative dispute resolution. 23

24. Mediation Method of settling disputes without going to court Voluntary
Mediator is neutral third party
Mediator cannot impose a solution on parties involved
LO 5.6 Name two advantages to alternative dispute resolution.

25. 5-25
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
LO 5.6 Name two advantages to alternative dispute resolution. 25