Transcript TORT LAW - Paws.wcu.edu.

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)
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-written
Slander-oral
DEFENSES TO A
DEFAMATION ACTION
1. TRUTH
2. PRIVILEGE
Absolute
Qualified
3. FRAUD
4. INVASION OF PRIVACY
HIPAA
http://www.ahima.org
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.
2.
3.
4.
Willful, intentional
Misrepresentation
Untrue
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
Criminal Intent
*Civil
* Negligence
(carelessness)
Public (state)
Imprisonment/fines
Conscious & deliberate
Statutes
* Individual
* Redress (damages)
*Unreasonable
*Standard of Care
*Community Rule
STATE
STATUTES
CHARTER
SCOPE OF
AUTHORITY
By-Laws
Standard of Care
GOVERNING
BOARD
Legislation and
Regulation
Expressed
Authority
Implied Power
Medical
Staff
Administration