Tort Law in Healthcare PDF

**[CHAPTER 14: TORT LAW IN HEALLTHCARE]** OVERVIEW - What is right or wrong - Is it legal - Is it fair - Is it practical - What is guilt **INTRODUCTION TO LAW** **CLASSIFICATION OF LAW -- I** *[PUBLIC LAW]* - Constitutional law - Administrative law - Criminal law *[PRIVA...

**[CHAPTER 14: TORT LAW IN HEALLTHCARE]** OVERVIEW - What is right or wrong - Is it legal - Is it fair - Is it practical - What is guilt **INTRODUCTION TO LAW** **CLASSIFICATION OF LAW -- I** *[PUBLIC LAW]* - Constitutional law - Administrative law - Criminal law *[PRIVATE LAW]* - Law of Contracts - Family Law - Property Law - Law of Torts **Criminal** Public Wrongs Substantive -------------- ---------------- ------------- **Civil** Private Wrongs Procedural **CRIMINAL LAW** - Misdemeanors (less than one year in jail) and Felonies (more than one year in jail) - The national, state, or local government (Prosecutor) claims a person (the Defendant) committed a crime. - If found guilty by a judge or jury the Defendant is sentenced to either jail, probation, community service, and/or a fine **CIVIL LAW** - A person or group that has a complaint against another person or group - Plaintiff sues a Defendant and a judge must determine guilt based on facts, evidence, and testimony - If Plaintiff wins the case the Defendant must pay money (damages) or stop doing what they were charged with - The defendant never goes to jail if found guilty in a Civil case **BASIS OF LEGAL LIABILITY** - A *[legal wrong]* is a **violation** of a [person's legal rights], or a **failure** to [perform a legal duty] owed to a certain person or to society as a whole. - Legal wrongs include: - Crime - Breach of contract - Tort **WHAT IS COMMON LAW** - [Common Law] is **judge-made law**. The basic requirement is that courts follow **[precedent]**. - **This is how:** Judges derive legal principles by looking back how other cases were decided, deducing a general principle, and applying it to the facts of this case. **WHAT IS TORT LAW?** - "The body of rules that determine when... [an injured party can recover] **[compensation]** [for an injury from another party through a civil action."] - **Why do we need TORT LAW?** - To provide **compensation** for people who have been injured - To achieve **corrective justice** by restoring the status quo when someone's rights have been violated - For **deterrence**. - **Basic purposes of tort law** - Preservation of peace between individuals by: providing a **[substitute for vengeance]**. - [Culpability] -- to find fault for wrongdoing - [Deterrence] -- to discourage the wrongdoer from committing future tort. - [Compensation] -- to indemnify the injured person of wrongdoing - **REMEMBER THIS...**Because an adverse medical outcome generally results in some **[financial damage]**, the effect of finding faults by the court is to... **determine who shall bear the cost of an unfavorable outcome.** - **A tort to be considered...** **[INTENTIONAL:]** - not only must the act be committed *[intentionally]*, but also the wrongdoer must realize that harm would result from that act. - always involved a *[willful act]* that violates another interest. HOWEVER; - *[negligent wrong]*... may not involve committing an act at all, it maybe simply a [failure to act] when there is a [duty to act.] **QUASI-DELICT** - **Civil law**: a delict (wrong) caused by negligence... Seemingly, apparently, supposedly - A **[quasi-delict]** is a negligent act or omission which causes harm or damage to the person or property of another. ( Phil. Version of Tort ) - Simplified: An act whereby a person, without malice, but by fault, negligence or imprudence not legally [excusable], causes injury to another. - Prima Facie: evidence proved to be true unless there is substantial contra evidences. **ARTICLE 2176** - The basic provision on quasi-delict, is [article 2176 of the Civil Code] which provides: - "Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is [no pre-existing contractual relation] between the parties, is called a **quasi-delict**". It is a residuary category of private wrongs, characterized by either vicarious or strict liability. **REQUISITES OF A CONTRACTUAL RELATIONSHIP** - **Consent** -- manifested by the meeting of the offer and the acceptance upon the thing and the cause w/c are to constitute the contract (Art. 1319 NNC) - **Object** -- the subject matter of the contract w/c is the medical service w/c the patient wants to be rendered to him by his physician - **Cause** - is the consideration or the factor that instigated the physician to render the medical service to the patient, w/c could be remunerator or an act of liberality. **ARTICLE 2180** - The obligation imposed by article 2176 is demandable not only for one own's act or omissions, but also for those of persons for whom one is responsible. - "diligence of a good father in the family" to prevent damage. - In short, the mistake of a doctor, is the mistake of the hospital -- "vicarious liability" of the employer. **LEGAL PRICIPLES AND DOCTRINES APPLIED IN MEDICAL MALPRACTICE CASES** - Doctrine of vicarious liability - Doctrine of Ostensible Agent - Borrowed Servant Doctrine - Captain of the Ship Doctrine - Doctrine of Res Ipsa Loquitor - Doctrine of Common Knowledge - Doctrine of Contributory Negligence - Doctrine of Assumption of Risk - Doctrine of Last Clear Chance - Fellow Servant Doctrine - Rescue Doctrine **NEGLIGENCE** - Is a tort... a civil or personal wrongdoing... distinguished from criminal conduct. - It is unintentional omission or commission of an act that a reasonably prudent person would or would not do under given circumstances. - It is a form of conduct caused by heedlessness or carelessness.Constitute a departure from the standard of care - Failure to use ordinary or reasonable care - **Law of Negligence:** Negligence is the failure to exercise the standard of care required by law to protect others from an unreasonable risk of harm. - **Negligence can occur:** - Where one has considered the consequences of an act and has exercised the "best possible" judgment. - Where one has failed to guard against a risk that should be appreciated. - Where one engages in certain behavior expected to involve unreasonable dangers to others. **COMMISSION OF AN ACT INCLUDES** - Administering a wrong medication - Administering medication to a wrong patient - Performing operation without consent - Performing a surgical procedure on the wrong patient - Performing wrong surgical procedure **OMISSION OF AN ACT** - Failing to conduct a thorough history and physical examination - Failure to assess and reassess a patient\`s nutritional status - Failure to administer medication - Failure to order diagnostic test - Failure to follow up on abnormal test results **FORMS OF NEGLIGENCE** - **Malfeasance** - performance of an unlawful or improper act. - **Misfeasance** - improper performance of an act causing injury - **Nonfeasance** - failure to act, when there is failure to act. **ELEMENTS OF NEGLIGENCE** - [Duty to care] - there must be an obligation to conform to a recognized standard of care. - [Breach of duty] - there must be a deviation from the recognized standard of care. there must be failure to adhere to an obligation. - [Injury (harm)] - actual damages must be established. - [Factual causation] - the departure from standard of care must be the cause of the plaintiff\`s injury. - [Proximate cause] **DOCTRINE OF CONTRIBUTORY NEGLIGENCE** - **Doctrine of Common Fault** - It has been defined as conduct on the part of the plaintiff or injured party, contributing as a legal cause to the harm he has suffered, w/c falls below the standard w/c he is required to conform to his own protection. - It is the act or omission amounting to want of care on the part of the complaining party w/c, concurring w/ the defendant's negligence, is the proximate cause of the injury. **RELATED CIVIL CODE PROVISIONS** - **Art. 2179, Civil Code** - "When the plaintiff's own negligence was the immediate and proximate cause of his injury, he cannot recover damages. But if his negligence was only contributory, the immediate and proximate cause of injury being the defendant's lack of due care, the plaintiff may recover damages, but the court may mitigate the damages to be awarded." - **Art. 2214, Civil Code** - In quasi-delicts, the contributory negligence of the plaintiff shall reduce the damages that he may recover." **Some instances where there is contributory negligence:** 1. Failure to give the physician an accurate history; 2. Failure to follow the treatment recommended by the physician; 3. Leaving the hospital against the advice of the physician; 4. Failure to seek further medical assistance if symptoms persist. **DOCTRINE OF ASSUMPTION OF RISK** - Predicated upon knowledge and informed consent, anyone who voluntarily assumes the risk of injury from a known danger, if injured, is barred from recovery. - "violenti non fit injuria\", which means that a person who assents and was injured is not regarded in law to be injured. **DOCTRINE OF SUPERIOR KNOWLEDGE** - In the physician-patient relationship, the physician has superior knowledge over his patient. The patient just follows the instructions and orders of the physician and is usually inactive and virtually places himself in the command and control of the physician. - The defense of contributory negligence is available only when the patient\'s conduct is a truly flagrant disregard of his health and cannot apply where the patient is mentally ill, semiconscious, heavily sedated or of advanced age. **DOCTRINE OF CONTINUING NEGLIGENCE** - If the physician, after a prolonged treatment of a patient which normally produces alleviation of the condition, fails to investigate non-response, he may be held liable if in the exercise of care and diligence he could have discovered the cause of non-response. **DOCTRINE OF LAST CLEAR CHANCE** - A physician who has the last clear chance of avoiding damage or injury but negligently fails to do is liable. - It implies thought, appreciation, mental direction and lapse of sufficient time to effectually act upon impulse to save the life or prevent injury to another. **DOCTRINE OF FORESEEABILITY** - A physician cannot be held accountable for negligence if the injury sustained by the patient is on account of unforeseen conditions but if a physician fails to ascertain the condition of the patient for want of the requisite skill and training is answerable for the injury sustained by the patient if injury resulted thereto. - A physician owes duty of care to all persons who are foreseeably endangered by his conduct, with respect to the risk which make the conduct unreasonably dangerous. **ELEMENTS OF NEGLIGENCE** - Purpose of compensatory damages - Put the injured party in the same financial situation he or she was in, before he or she suffered harm. **IMPUTED NEGLIGENCE** - "To relate to a particular cause or source" - Under certain conditions, the negligence of one person can be attributed to another... - Example: the negligent act of an employee can be imputed to the employer. NEGLIGENCE: - [MALPRACTICE ] - Negligence or carelessness of a professional person - suits may allege various mistakes made by doctors or other medical professionals including misdiagnosis, mistreatment, delayed diagnosis, failure to diagnose, surgical errors, medical errors - Not all errors in medical diagnosis and treatment are necessarily a malpractice, because there certain risk and margins for errors that arise inherently in the practice of medicine! - [CRIMINAL NEGLIGENCE] - Reckless disregard for the safety of another is criminal negligence. **TYPES OF DAMAGES AWARDS** The law allows for the following types of damages: - [Compensatory damages] compensate the victim for losses actually incurred. They include: - Special damages, e.g., medical expenses - General damages, e.g., pain and suffering - [Punitive damages] are designed to punish people and organizations (hospital) so that others are deterred from committing the same wrongful and egregious act. (also called exemplary damages) **N.B.** - **Physician-Patient relationship** does not imply guaranty or any promise that the treatment *will be successful* - it does not imply any promise or guaranty that the treatment *will benefit the patient* - it does not imply any promise or guaranty that the *treatment will produce certain result* - it does not promise or guaranty that the treatment *will not harm the patient* - it does not promise that the physician *will not commit errors in an honest way* **RES IPSA LOQUITUR** Under this doctrine, the very fact that the injury or damage occurs establishes a presumption of negligence on behalf of the defendantMeans, "the thing speaks for itself" e.g.,a retained surgical instrument **DOCTRINE OF RES IPSA LOQUITOR** - The thing speaks for itself, nature of the wrongful act or injury is suggestive of negligence. - General rule: expert testimony is necessary to prove that a physician has done a negligent act or that has deviated from the standard of medical practice. - **Requisites of Res Ipsa Loquitor Doctrine:** 1. The accident must be of a kind which ordinarily does not occur in the absence of someone\'s negligence; 2. It must be caused by an agency or instrumentality within the exclusive control of the defendant; 3. It must not have been due to any voluntary action or contribution on the part of the plaintiff. - **Some cases wherein the Doctrine of Res Ipsa Loquitor has been applied:** 1. Objects left in the patient\'s body at the time of caesarian section; 2. Injury to a healthy part of the body; 3. Removal of a wrong part of the body when another part was intended; 4. Infection resulting from unsterilized instruments; 5. Failure to take radiographs to diagnose a possible fracture; - **Instances where the Doctrine of Res Ipsa Loquitor does not apply:** 1. Where the Doctrine of Calculated Risk is applicable; *\"When an accepted method of medical treatment involves hazards which may produce injurious results regardless of the care exercised by the physician\"* 2. Bad Result Rule; 3. Honest Errors of judgment as to Appropriate Procedure; 4. Mistake in the Diagnosis. In most medical malpractice suits, there is a necessity for a physician to give his expert medical opinion to prove whether acts or omissions constitute medical negligence. *This doctrine has been regarded as rule of sympathy to counteract the \'conspiracy of silence\'* **RESPONDENT SUPERIOR** A person is vicariously liable for the torts of: 1. An employee. 2. Acting within the scope of his/her employment. **DOCTRINE OF RESPONDEAT SUPERIOR** - **"Let the master respond"** - Is a legal doctrine holding employers liable, in certain cases, for the wrongful acts of their employees. - This also been referred as "vicarious liability" meaning: employer is answerable for the torts committed by employees. - In the health care setting, an organization is liable for the negligent acts of its employees, even though there has been no wrongful conduction on the part of the institution. **Employees act within the scope of employment if their acts are so:** 1. closely connected with the job 2. fairly and reasonably incidental to it that they may be regarded as methods, even though quite improper ones, of carrying out the objectives of employment **For liability to be imputed to the employer:** - a master-servant relationship must exist between the employer and the employee. - the wrongful act of the employee must have occurred within the scope of his or her employment. **REASON BEHIND THIS DOCTRINE** - The employer derives a benefit from the work of his employees and therefore he should also accept associated risk. **The question of liability frequently rest on** - whether persons treating a patient are independent agents. Meaning (responsible for their own acts) - employees of the institution **Basic Rationale!!!** - Imposing liability on an employer developed because the employer possesses the right to control the physical acts of its employees. - Generally, the plaintiff\`s attorney will file suit against both the employer and the employee. **Important Reminders** - employer is not without remedy if liability has been imposed against it for an employee\`s negligent act. - the law holds negligent persons responsible for their act, employees are not absolved from liability when a health care facility is held liable through application **Respondeat superior**. - Not only may the injured party sue the employee directly, but also the employer, if sued, may seek indemnification from the employee. - The plaintiff has the burden for establishing an employee-employer relationship. - This is difficult especially in the case of independent physicians. **Remember this** - An officer or Director of a hospital is not, merely as a result of his or her position, personally liable for the torts of the employee - To incur liability - the Director ordinarily must be shown to have in some way or another participated in or directed the tortous act. **[PROFESSIONAL AND PERSONAL DEVELOPMENT]** **[CHAPTER 15: LAWS AFFECTING THE PRACTICES OF NURSING IN THE PHILIPPINES]** **PRESIDENTIAL DECREES** - PD 48 -- FOUR (4) CHILDREN WITH PAID MATERNITY LEAVE PRIVILEGE - PD 69 -- FOUR (4) CHILDREN FOR PERSONAL TAX EXEMPTION - PD 442 -- NEW LABOR CODE - PD 491 -- NUTRITION PROGRAM - PD 541 -- PRACTICE OF FORMER FILIPINO PROFESSIONALS IN THE PHILIPPINES - PD 603 -- CHILD AND YOUTH WELFARE CODE - PD 626 -- EMPLOYEE COMPENSATION AND STATE INSURANCE FUN - PD 651 -- BIRTH REGISTRATION FOLLOWING DELIVERY - PD 625 -- ANTI IMPROPER GARBAGE DISPOSAL - PD 851 -- 13TH MONTH PAY - PD 856 -- CODE OF SANITATION - PD 965 -- FAMILY PLANNING AND RESPONSIBLE PARENTHOOD INSTRUCTIONS PRIOR TO ISSUANCE OF MARRIAGE LICENSE - PD 996 -- COMPULSORY IMMUNIZATION FOR CHILDREN BELOW EIGHT (8) YEARS OLD AGAINST IMMUNIZABLE DISEASES - PD 1083 -- MUSLIM HOLIDAYS - PD 143 -- WOMAN AND CHILD LABOR LAW (NO CHILD BELOW 14 SHALL BE EMPLOYED) - PD 1519 -- MEDICARE BENEFITS FOR ALL GOVERNMENT EMPLOYEES - PD 1636 -- COMPULSORY MEMBERSHIP TO SSS OF SELF-EMPLOYED PERSONS **EXECUTIVE ORDERS** - EO 51 -- MILK CODE - EO 180 -- GUIDELINES ON THE RIGHT TO ORGANIZE OF GOVERNMENT EMPLOYEES - EO 203 -- LIST OF REGULAR HOLIDAYS AND SPECIAL DAYS - EO 209 -- FAMILY CODE OF THE PHILIPPINES (AMENDED BY RA 6809) - EO 226 -- COMMAND RESPONSIBILITY - EO 174 -- NATIONAL DRUG POLICY (AVAILABILITY, AFFORDABILITY OR SAFE, EFFECTIVE, QUALITY DRUGS) - EO 857 -- COMPULSORY DOLLAR REMITTANCE LAW **BOARD OF NURSING RESOLUTION** - \#100 SERIES 1983 -- IMPLEMENTING RULES AND REGULATIONS OF RA 7392 - \#633 SERIES 1984 -- ICN CODE OF ETHICS - \#1955 SERIES 1989 -- PNA CODE OF ETHICS - \#08 SERIES 1994 -- SPECIAL TRAINING ON INTRAVENOUS INJECTIONS FOR THE RNS - \#1930 SERIES 1985 -- CPE FOR NURSES - \#187 SERIES 1991 -- RENEWAL OF PROFESSIONAL LICENSE - \#217 SERIES 1992 -- DELISTING OF DELINQUENT PROFESSIONALS **PROCLAMATION/ PRONOUNCEMENTS & LETTERS OF INSTRUCTIONS** - -- PROC \#6 -- UNITED NATIONS GOAL ON UNIVERSAL CHILD IMMUNIZATION BY 1990 - -- PROC \#118 -- PROFESSIONAL REGULATION WEEK -- JUNE 16-22 - -- PROC \#539 -- NURSES WEEK -- EVERY LAST WEEK OF OCTOBER - -- LOI \#949 -- LEGAL BASIS OF PRIMARY HEALTH CARE - -- LOI \#100 -- MEMBERS OF ACCREDITED PROFESSIONAL ORGANIZATIONS GIVEN PREFERENCE IN HIRING OR ATTENDANCE TO SEMINAR - -- ILO CONVENTION \#149 -- IMPROVEMENT OF LIFE AND WORK CONDITIONS OF NURSING PERSONNEL (ILO RECOMMENDATION \#157) **REPUBLIC ACTS** - RA 1054 -- FREE EMERGENCY MEDICAL AND DENTAL ATTENDANCE TO EMPLOYEES/ LABORERS OF ANY COMMERCIAL, INDUSTRIAL OR AGRICULTURAL ESTABLISHMENTS - RA 1080 -- CIVIL SERVICE ELIGIBILITY - RA 1082 -- CREATION OF RURAL HEALTH UNITS ALL OVER THE PHILIPPINES - RA 1612 -- PRIVILEGE TAX/ PROFESSIONAL TAX - RA 2382 -- PHILIPPINE MEDICAL ACT - RA 3573 -- REPORTING COMMUNICABLE DISEASES - RA 4073 -- TREATMENT OF LEPROSY IN GOVERNMENT SKIN CLINIC, RURAL HEALTH UNIT/BY DULY LICENSED PHYSICIAN - RA 4226 -- HOSPITAL LICENSURE - RA 5181 -- PERMANENT RESIDENCE AND RECIPROCITY QUALIFICATIONS FOR EXAMINATIONS/ REGISTRATION - RA 5901 -- WORKING HOURS AND COMPENSATION AND AGENCIES WITH 100 BED CAPACITY - RA 6675 -- GENERICS ACT OF 1988 - RA 6713 -- CODE OF CONDUCT AND ETHICAL STANDARDS FOR PUBLIC OFFICIALS AND EMPLOYEES - RA  6725 -- PROHIBITION ON DISCRIMINATION VS. WOMEN - RA 6727 -- WAGE RATIONALIZATION