Transcript Judson_LE7e_ch5_final

Ch 5
Professional
Liability and
Medical
Malpractice
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5-2
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
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5-3
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.
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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.
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5-5
Liability
• All competent adults are liable, or
legally responsible, for their actions
on the job and in private life
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5-6
Physician Liability as an Employer
• Grounds and buildings
• Automobiles
• Employee safety
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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
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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
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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
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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
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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
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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
voicemail
• Keep patient
information out of
sight from other
patients or visitors
• Make only legal
exceptions to
disclosure
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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
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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
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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
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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
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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
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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
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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
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5-20
Damage Awards
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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
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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
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5-23
Alternative Dispute Resolution (ADR)
• Techniques for resolving civil disputes
without going to court
–Uses neutral mediators or
arbitrators
• Two types
–Mediation
–Arbitration
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5-24
Mediation
• Method of settling disputes without
going to court
–Voluntary
–Mediator is neutral third party
–Mediator cannot impose a solution
on parties involved
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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
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