Law & Ethics for Health Professions Professional Liability

Because learning changes everything. ® Chapter 05 Professional Liability Law & Ethics for Health Professions TENTH EDITION Karen Judson, Carlene Harrison, and Tammy Albright © McGraw Hill LLC. All rights reserved. No reproduction or distribution without the prior writ...

Because learning changes everything. ® Chapter 05 Professional Liability Law & Ethics for Health Professions TENTH EDITION Karen Judson, Carlene Harrison, and Tammy Albright © McGraw Hill LLC. All rights reserved. No reproduction or distribution without the prior written consent of McGraw Hill LLC.  Learning Outcomes 5.1 Define liability, law of agency, and respondeat superior. 5.2 Describe the reasonable person standard, standard of care, and duty of care. 5.3 Explain the four elements necessary to prove negligence (the four Ds). 5.4 Outline the phases of a lawsuit. 5.5 Identify when the use of alternative dispute resolution in resolving medical malpractice claims is most effective. 5.6 Explain the doctrine of informed consent. © McGraw Hill, LLC 2  Liability and Law of Agency Liability: All competent adults are liable, or legally responsible, for their actions on the job and in private life. Law of Agency: Law governing relationship between principal and agent. May be expressed or implied. Agent: One who acts for another. Respondeat superior: Physician is responsible for acts of employee. © McGraw Hill, LLC 3  Physician Liability as an Employer Grounds and buildings. Automobiles. Employee safety. © McGraw Hill, LLC 4  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. © McGraw Hill, LLC 5  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 under similar circumstances. We are responsible for our actions (or our failure to act) under the Reasonable Person Standard. © McGraw Hill, LLC 6  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. 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. © McGraw Hill, LLC 7  Unintentional Tort of Negligence Any deviation from the accepted medical standard of care that causes injury to the patient. Basis for professional malpractice claims. Most common liability in medicine. © McGraw Hill, LLC 8  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. © McGraw Hill, LLC 9  Four Elements to Prove Negligence 1. Duty: The person charged owed a duty of care to the accuser. 2. Dereliction: The health care provider breached the duty of care to the patient. 3. Damage: Court-ordered monetary awards to patients, given as a result of legally recognized injuries to patients. 4. Direct cause: The breach of duty of care to the patient caused the injury. © McGraw Hill, LLC 10  Damage Awards General compensatory: to compensate for injuries or losses due to violation of a patient’s rights. Special compensatory: to compensate for losses not directly caused by the wrong. Consequential: to compensate for losses caused indirectly by a product defect. Punitive: to punish the offender. Nominal: to recognize that rights of patients were violated, though no actual loss was proved. © McGraw Hill, LLC 11  Doctrine of Common Knowledge Res ipsa loquitur: “The thing speaks for itself"—negligence is obvious. Three conditions must occur: The act must obviously 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 injured if reasonable care were used. © McGraw Hill, LLC 12  Cases of Res Ipsa Loquitur 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. © McGraw Hill, LLC 13  Wrongful Death Statutes State statutes that allow a person's beneficiaries to collect for loss to the estate of the deceased for future earnings when a death is judged to have been due to negligence. The state may also prosecute a heath care practitioner under criminal statutes for the wrongful death of a patient. © McGraw Hill, LLC 14  Phases of a Lawsuit Pleading phase: Summons is issued. Interrogatory or pretrial discovery phase: Subpoena and deposition may occur. Trial phase: Jury is selected. Witnesses are called to testify for both sides. Jury reaches a verdict. Appeals phase: Request for the case to be reviewed by a higher court if the evidence indicates errors have been made or there was injustice or impropriety in the trial court proceedings. © McGraw Hill, LLC 15  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. © McGraw Hill, LLC 16  Alternative Dispute Resolution (A D R) Techniques for resolving civil disputes without going to court: Uses neutral mediators or arbitrators. Two types: Mediation. Arbitration. © McGraw Hill, LLC 17  Mediation Method of settling disputes without going to court: Voluntary. Mediator is neutral third party. Mediator cannot impose a solution on parties involved. © McGraw Hill, LLC 18  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. Each party selects an arbitrator, and the two arbitrators select a third. © McGraw Hill, LLC 19  Consent Permission from a person, either expressed or implied, for something to be done by another. In health care, consent is permission to: Examine the patient. Perform tests that aid diagnosis. Treat the patient. © McGraw Hill, LLC 20  Doctrine of Informed Consent Outlined in a state’s medical practice acts: Proposed modes of treatment. Why the treatment is necessary. Risks involved in the proposed treatment. Available alternative modes of treatment. Risks of alternative modes of treatment. Risks involved if treatment refused. © McGraw Hill, LLC 21  Who Cannot Give Informed Consent Minors, persons under age of majority. Persons who are mentally incompetent as determined by a court. Persons speaking limited or no English. © McGraw Hill, LLC 22  Informed Consent and Abortion Law States impose a variety of restrictions. Best to stay informed about current law in each respective state. Can check various websites for most current information. © McGraw Hill, LLC 23  Informed Consent and H I V Testing State public health law varies for HIV testing: Permission from legal guardian (may be a parent) required for infants and young children. Married minors, emancipated minors, and minor parents may have the right to consent to testing. © McGraw Hill, LLC 24  When Consent Is Unnecessary Emergency situations. Good Samaritan acts: Give care in good faith. Act within scope of training and knowledge. Use due care under circumstances. Do not bill for services. © McGraw Hill, LLC 25  End of Main Content Because learning changes everything. ® www.mheducation.com © McGraw Hill LLC. All rights reserved. No reproduction or distribution without the prior written consent of McGraw Hill LLC.