Health Care Relationships PDF

Sub-Outcome 01: Describe each of the following relationships: physician-patient, hospital-patient, hospital-physician Health Care Relationships An individual must have established a relationship with the health care provider before he can file a law- suit against him. This relationship o...

Sub-Outcome 01: Describe each of the following relationships: physician-patient, hospital-patient, hospital-physician Health Care Relationships An individual must have established a relationship with the health care provider before he can file a law- suit against him. This relationship obligates all parties to each other and serves as the basis for a malpractice suit. 1 Sub-Outcome 01: Describe each of the following relationships: physician-patient, hospital-patient, hospital-physician Relationships most common to law- suits in the healthcare filed are: Patient Physician Hospital 2 Sub-Outcome 01: Describe each of the following relationships: physician-patient, hospital-patient, hospital-physician 1.Physician- Patient Relationship: This relationship serves as the cornerstone of healthcare. It starts when the patient requests treatment and the physician agrees to provide that treatment. This is a contractual relationship that involves an offer and an acceptance. It can either exist as an express contract or an implied contract. Once this relationship is established, it continues until its properly terminated or when the patient no longer needs treatment. Terminating the relationship can be accomplished through: the physician withdraws from the contract, the patient may dismiss the physician, or the physician and the patient may mutually agree to end the contract. 3 Sub-Outcome 01: Describe each of the following relationships: physician-patient, hospital-patient, hospital-physician 2. Hospital- patient relationship: The relationship begins when the patient in voluntarily admitted to the hospital. At the time of admission the patient sign certain forms agreeing to pay for the treatment. This act establishes an express contract to receive health care. This relationship ends when the patient is discharged or leaves the hospital against medical advice. 4 Sub-Outcome 01: Describe each of the following relationships: physician-patient, hospital-patient, hospital-physician 3.Hospital-Physician Relationship: This relationship is not based on direct health care. It is based on the contract between hospital and physician that allows the physician to bring his patients to the hospital to receive healthcare. In this relationship the hospital provides and coordinates patient care along with the physician. It begins with credentialing process. Being a licensed physician is not enough to become a member of the hospital medical staff. The credentialing process involves the examination by the hospital 's governing board of the physician 's background, experience and licensure against established criteria. Once admitted to the medical staff, the governing board determines the scope and limit- that is, medical staff privileges- of the physician 's practice in the hospital. Hospitals have a duty to assure that their medical staffs are competent. 5 Sub-Outcome 02: Define negligence, medical malpractice "Omission or commission of an act that a reasonably prudent person would or would not do under similar circumstances. Negligence is a form of carelessness that represents a departure from the standard of care imposed on members of society." (Health Information: Management of a Strategic Resource, page 796) 6 Sub-Outcome 02: Define negligence, medical malpractice Medical Malpractice Professional medical "negligence or misconduct, such as failure to meet the prevailing standard of care for the profession that results in harm to another. Duty Breach Conduct has failed to conform to standard of care Must have some duty, e.g. physician to patient Malpractice (Health Information: Cause Harm Management of a Breach must be the "proximate Physical pain, suffering, emotional Strategic Resource, cause" of the harm distress, monetary loss page 793) 7 Sub-Outcome 02: Define negligence, medical malpractice Duty of Care A health professional who undertakes to care for a patient has a duty to exercise reasonable care and skill to avoid injuring the patient. It is an obligation, recognized by law, to avoid conduct which would pose unreasonable risk to others. 8 Sub-Outcome 02: Define negligence, medical malpractice Negligence "Once a health professional (Doctor, Nurse...etc) has responsibility for a patient a legal relationship comes into existence which obliges the health professional to exercise such a degree of skill and care leaves a health professional open to an action in negligence by an aggrieved patient. This is a civil action in which the aggrieved patient sues the health professional (Doctor, nurse...) for damages, for an alleged injury resulting from the treatment given or from an omission of treatment or advice." 9 Sub-Outcome 02: Define negligence, medical malpractice For an action in negligence to succeed the patient must establish his/her case on the following: 1. A duty of care was owed by the health professional (defendant) 2. The defendant's conduct fell below the required standard of care 3. The breach of the duty of care caused, or materially contributed to, the damage suffered can either be physical or mental. 4. The loss or damage suffered was reasonably foreseeable 5. The loss or damage is assessable monetarily 10 Sub-Outcome 02: Define negligence, medical malpractice Examples of Negligence: Failure to disclose risks (Patient Autonomy). Failure to diagnose. Many actions of negligence are commenced under this category and frequently related to allegations of delayed diagnosis of cancer. Failure to provide sufficient advice 11 Sub-Outcome 02: Define negligence, medical malpractice Assessment of Damages: Damages are assessed and awarded in regard to: General damages for pain, suffering and loss of amenity Specific damages for actual financial losses and expenses (loss of income, medical and hospital expenses). Future losses and expenses arising from the negligence 12 Sub-Outcome 02: Define negligence, medical malpractice Negligence Record keeping is part of the care and treatment of a patient. Without records, staff are not always able to communicate with one another regarding the patient's condition and what should or should not be done for the patient. Without records staff would also not be able to remember information which would affect their own actions. A significant number of interventions are based on the information in the patient records. The well being of the patient depends on this information and the patient can be placed at risk of injury without correct information in many instances. (Written by Gail Gray) 13 13 Sub-Outcome 02: Define negligence, medical malpractice Five Errors can be made with respect to the compilation and utilization of the patient record: 1. information which is required for the care and treatment of the patient is omitted. 2. incorrect information is placed in the record. 3. information which is required by a particular staff member or service for the patient's care or treatment is not transferred to them. 4. personnel fail to read recorded information. 5. personnel read the record incorrectly either through carelessness on the part of the reader or illegibility on the part of the recorder. 14 Sub-Outcome 02: Define negligence, medical malpractice An example of negligence in record keeping resulting in liability is seen in the British Columbia case of Wipfli v. Britten, where the doctor's record keeping was criticized: "...his failure to record the fundal height and other usual obstetric information on the running chart for the November 7 visit..., all contributed in some degree to Dr. Britten's failing to diagnose that Mrs. Wipfli was carrying twins. Under the circumstances of this case I am satisfied that his failure to diagnose twins was not in accord with the reasonable standard of care of a family physician practicing in Vancouver in 1975-76. I conclude that he was negligent". It must therefore be concluded that in any preventive liability, liability risk management or quality assurance program, special attention must be paid to the quality of record keeping. This applies not only to records maintained in a health institution but equally to those records maintained in private. Ro:covsky, L.E. &c Rozovsky, F.A. The Canadian Law of Patient Records. Toronto, Butterworths, 1984, p. 31. 15 Sub-Outcome 02: Define negligence, medical malpractice Medical Negligence Medical Negligence is a part of the Law of Negligence in the branch of Law of Torts. It is one of the kinds of professional negligence, like, negligence of a lawyer, an engineer or an auditor. The scope for litigation in the case of medical negligence is comparatively more than in other professions for various reasons. 16 Sub-Outcome 02: Define negligence, medical malpractice What Is Negligence? A Medical Practitioner may be liable for negligence if they have failed to exercise reasonable skill and care in any one or more of the following areas: 1. Treatment 2. Diagnosis 3. Provision of Information 4. Provision of Advice Negligence Is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do - definition by Alderson B (1856) 17 Tort Law in the UAE What is the meaning of 'Tort' under the U.A.E. Law? A Tort is: a civil wrong resulting from an act or omission which has caused damage to other persons or property, regardless of whether or not the act or omission constitutes a crime or is precipitated by a contractual breach. Tort is recognized in U.A.E. law under Articles 124 and Articles 282 of the U.A.E. Civil Code which read as follows: Article 124 Article 282 " Personal obligations or rights shall arise out of dispositions, legal events and the law, and the sources of obligation shall be as follows; " Any harm done to another shall render the actor, 1. Contracts even though not a person of discretion, liable to 2. Unilateral acts make good the harm.“ 3. Acts causing harm (torts) 4. Acts conferring a benefit; and 5. The law " These articles are founded upon original Islamic Sharia principles, which hold that it is not acceptable for any person to cause damage to another persons physical or material well being. 19 19  1. Who will be responsible for a tortious act? The person who commits a tortious act ( i.e. the tortfeasor) will be responsible for rectifying the situation or paying for the damages caused, whether it was personal injuries or damage to property. 2. When will a person be liable under tort? A person will be liable in tort if he/she has committed an act or omission and the resulting damages are directly attributable to this act or omission. 20 20 3. Is it necessary for the resulting damages to have been intended for a person to be liable for a claim under tort? It is not necessary to show that the party responsible intended to cause damages in order to establish their liability under tort. It is enough for the party claiming compensation to show that the person who has committed the act has either committed the act intentionally, or by accident, or indirectly, whereby he/she has violated a legal obligation requiring him to take due care and diligence. 4. Would a person be liable even if damages were caused by force? If the person was able to show that damages were caused by force, unforeseen circumstances beyond his control or the act or omission of a third party (or for that matter, the person who has suffered damages), the person will not be held liable, unless of course there has been an agreement between the parties to say otherwise. 26 5.Would a person be liable to pay damages under tort, if the damages resulted from an act of self-defense? A person who, acting in self defense, attempts to defend himself, his family, his assets or other people and their property shall not be liable to pay damages, provided that the act committed and the damages caused were necessary and required. He will, however, remain liable for damages he has caused which were in excess of those directly attributable to those created by the response required under the circumstances. 6.Will a person be liable for damages under tort even if he was ordered to carry out the act or omission? A person who is carrying out the act will be personally liable even if he was ordered to do so by another person. For 'force' to be a mitigating factor, it must be of the type that forces a person against their will to commit the act or omission. However, an officer working in a public department will not be liable for an act or omission that causes damages to another person if he has complied with the order of a superior and is obligated to comply with such an order by virtue of his employment at the time. In this case the act or omission is legal and permissible provided that he has taken due diligence in the matter. 22 22 7. Would a person be liable to pay damages under tort even if another person has contributed to the damage? It is not permissible for a person who has suffered damage or loss to cause loss or damages to another person by way of retaliation. Each person in such case will be liable to compensate the other for the extent of the damages that he has caused. Further, if the person has contributed to the damages by his own fault or act of omission, he may not be awarded damages or the damages may be reduced by proportion. 8. In the case of damages caused by more than one person, who will be liable to compensate for the damages? In the event that damages have been caused by more than one person, each of the persons will be liable for the extent of the damages which was caused by his act for which he is liable. However, the court may order all the persons to pay for the damages jointly and severally. 23 23 9. How are damages normally assessed? Damages are generally assessed according to the extent of the loss and damage suffered by the other person, including future earnings for example, provided always that the compensatable damages were the natural result of the tortious act. 10. Would a person be entitled to moral as well as material damages? It is possible for a person to make a claim for moral damages. These may include violation of a person's freedom, dignity, reputation, social or financial status. 29 11. How would damages be paid? Damages are normally assessed by financial compensation which may be paid in advance or by installment by way of remuneration. A judge may order the liable party to put up a guarantee in order to secure the payment. However, a judge may, in other circumstances, order the responsible party to rectify the situation or to carry out certain acts by way of compensation for the damages. 12. Would it be possible for parties to agree to exempt each other from compensation for wrongful acts or to limit the amount of compensation? It is prohibited under the U.A.E. law to agree to exempt another person from compensation resulting from a wrongful act and the Court will declare any agreement to this effect to be null and void. However, if would be permissible for the party to limit the compensation to a certain amount or specified remedy, provided that such agreement does not violate an existing law , regulation or public policy. 25 13. Is it compulsory in a damage claim that the party responsible be found guilty in criminal proceedings? Not every wrongful act constitutes a crime under the criminal law in force in the U.A.E. Therefore, a person may be liable under tort, without having been convicted in the criminal or traffic Courts. It follows that if a person is found innocent in a criminal action, this does not necessarily mean that he will not be liable for damages that have been caused by his act or omission under tort. It may be possible that even if he was found innocent in a criminal action, he may still be found liable to pay for the damages that were caused by his wrongful act. 31  14. What is the significance of a guilty finding in criminal court to a subsequent claim for damages under tort? If a wrongful act committed by a person constitutes a crime under the penal code or the traffic act, any judgement delivered in such case by which the criminal court finds him guilty will be useful in a subsequent civil action for which a claim for tort has been brought. Usually, a criminal judgement finding a person guilty for the act will be used as conclusive evidence to show that the person has committed the act and been found liable, enabling the other party to claim damages and compensation under tort. 15. When would a claim under tort be time barred? Any claim under tort for damages to property or for personal injuries will be time barred within three years from the date on which the person who suffered damages was aware of the act or omission and the party who was responsible for it. However, if the act constitutes a crime and the criminal case was still being heard before the court even after the lapse of three years, the time will be extended until such date on which the criminal case is determined. 27 27 16.What would be the compensation payable for causing death to another person under tort? A person who caused death to another person whether intentionally or accidentally and without prejudice to any other criminal proceedings that may be brought against him, will be liable to pay Dhs. 150,000/- diya money to the heirs of the deceased by way of blood money. Diya will only be payable if the person who has caused the death was found liable under tort for committing wrongful act or omission. 17. Is diya a compensation or punishment under the U.A.E. Law? Diya is compensation that is payable by the person who has committed the act or omission, however, it is also applied as a form of punishment. Therefore, it is not required that the deceased's heirs bring an action for damages to be awarded the diya. The judge in charge of the criminal proceeding will award the diya when announcing the sentence against the person, whereby he will be prosecuted for causing intentional or wrongful death to other person. 28 28 18.Can the heirs of the deceased claim diya in addition to other compensation or is their claim limited to diya only? The heirs of the a deceased person may claim additional compensation if they have the legal grounds to do so. These claims may include, for example, loss of future earning, moral pain and suffering or any other damages that the heirs have suffered as a direct result of the wrongful act or the death of the deceased. Compensation therefore, is not limited to diya. 19.Would the diya awarded as compensation for a deceased male be equivalent to that awarded for the death of at female? Diya for the female in U.A.E. Federal Court jurisdictions (i.e. all Emirates with the exception of Dubai and Ras Al Khaimah) is half of that payable to the male. Therefore, the diya payable for the death caused to a female will be Dhs. 75,000. For a male it will be in the amount of Dhs. 150,000. In Dubai, diya payable for the death of a female is equivalent to that payable on the death of a male. The amount is set at Dhs. 150,000. 34  20. Would a person be liable to pay for the value of the things damaged even if the damages were minor? If the damages are minor and the damaged item can be replaced, the person liable will only have to pay the value of the portion damaged or the replacement value of the item in order to restore the damaged items to their original condition.. However, if the damages to the goods or materials cannot be rectified, the person liable must pay the full value of the same prior to the accident. In cases where a person has paid for the damages or replaced the damaged items, he is entitled to take the damaged goods as consideration for the amounts paid. 21. Would a minor be liable to pay for damages caused to another person? Minors will be liable to pay for damages caused to another person. Compensation will be paid from their own money or from the money of their guardian. 30 30  22. Would a person who has goods under his custody be liable to compensate for damages? A person who has goods or materials under his custody has a duty to take due care and diligence to safeguard those goods and shall be liable for any damages caused to the goods unless such damages were caused by force majeure. He also has the duty to return the goods to their owner in good condition and if he fails to do so, he will be liable to pay the value of the same or its equivalent. 36 23. Would a person be liable to pay damages on behalf of another person who has committed the wrongful act? Normally, a person will not be liable to pay damages or compensation for the act or omission of another person. However, under U.A.E. law, the following persons will be liable to pay compensation for damages for the act or omission of another person: A person who has under the law or by an agreement, a duty to supervise another person because he is a. minor and/or suffers from a mental or physical illness or condition, unless he proves that he has carried out his duties with the proper care and diligence and that the damages were inevitable notwithstanding the required care A person who has an actual duty to supervise and guide a person who has committed the wrongful act b. or when the act or omission was committed by an employee in the course of his employment. However, in both the above incidents, the person who has paid the damages may have a claim for a recourse action against the person who has committed the wrongful act. 32 32 24. Would a person be liable for damages caused by animals under his custody? A person who has animals under his custody, whether he is the owner or not, has a duty of care and shall be liable for any damages caused by the animals to another party. 25. Would a person be liable for damages to another person for the collapse of a building? The owner of a building, or the manager of the same, will be liable for any damages caused to another person due to the collapse of the building, unless he was able to prove that he committed no fault and has taken the due care and diligence required from him under the law. 26. Would a person be liable for damages caused by material or machinery ? If a person has, under his custody, objects or machinery which require special care, he will be liable for any damages that such objects or machinery may cause to another person. 38  27. Would a person who, in the exercise of his legal rights, causes damage to another, be liable to compensate for these damages? Use of the general right is limited by the understanding that the exercise of such a right does not cause damages. Therefore, if any person in the exercise of his legal rights causes damage to other people, he will be liable to compensate them. 28. When is an act or omission considered illegal or harmful? An act will be considered illegal or harmful if such an act was committed by illegal means or in violation of the following: i. If a person has caused damages intentionally. ii. If what needed to be gained from the act is contrary to the Islamic principle of Shariah law or public policy. iii. If the right which a person is seeking is limited in relation to the excess damages which have been caused. iv. If a person has exceeded usage or custom. 34 34 29. What is the difference between a claim for damages under a contract and a claim for damages under tort? A claim for damages under tort would be founded upon a breach of a legal obligation by a party causing damages to another. On the other hand, damages under a contractual claim are founded upon the breach by a party to a contract of an obligation to another party under the terms of their respective agreement. 30. Can someone who is a party to a contract claim damages from the other contractual party for breach of contract under tort? It is possible under U.A.E. law for a party to a contract to claim damages under the contract or under tort, if the conditions of tort are applicable to the case. Therefore, if a claim under tort would be more beneficial to the claimant, he may choose to pursue a tort claim, regardless of whether or not they are a party to a pre-existing contractual relationship with the tortfeasor. 35 35  31. Can a third party who is not a party to the contract claim damages for breach of contract which also may be a tort under the general principle of tort? A person who is not a party to a contract may claim damages under tort since he is not a party to the contract. If the act or omission constitutes a breach to a contract as well as a social act, the third party who is not a party to the contract may claim compensating for the damages caused by the wrongful act. This claim will be additional to any claim that the contractual party may claim under breach of contact. 32. Is there a limit on how much a person can claim for damages under tort? There is no limit to the amount of damages that a person can claim under tort. Damages are usually assessed by the actual losses, damages or personal injuries suffered by the person including moral. 41 33. Can you insure against liability arising out of tort? Liability arising out of tort can be insured in many different forms. It can be by way of careless liability, insuring motor vehicles vis-a-vis third parties or any other form of insurance that covers the negligence, fault or wrongful act of a person. 34. Is it possible to exempt one party to a contract from liability? Liability is not a matter of public policy, especially in the context of a contractual relationship. Article 390(1) of the U.A.E. Civil Code states that " contracting parties may fix the amount of compensation in advance by making a provision therefor in the contract or in a subsequent agreement, subject to the provisions of the law." Therefore, it is certainly possible in a contract for either party to exempt another from liability. However, this exemption will always be subject to judicial review should a dispute arise at a future date. Normally, the only exception to this arises if the damages were caused by cheating or gross negligence. In the latter circumstances the Court will most definitely review any contractual exemption from liability. 37 37 35. When would a person be prosecuted in Criminal Court for a wrongful act? If the wrongful act amounts to a crime as specified in U.A.E. criminal law, the Traffic Act or any other legislation, the person may be prosecuted for the wrongful act whether it was intentional or by negligence, and he may be either fined or sentenced to prison for the wrongful act. This is, of course, without prejudice to the person who has suffered damages as a result of the act, to claim damages through the criminal proceedings or by filing a separate civil action against the liable party. 36. Who should be claiming compensation or damages in the case of wrongful acts or omissions? The party who has suffered damages will be the only person entitled to claim compensation. In the case of a death, only the legal and rightful heirs of the deceased will be entitled to claim compensation. In such a case, evidence of the identity of the legal heirs must be provided to the Court. 38 38 37. Would an employer be liable to pay compensation under tort? An employer will be liable to pay an employee compensation under tort if the employee dies during the course of his employment or because of it. However, under U.A.E. labour laws, an employer's maximum liability has been set at Dhs. 35,000 for death or injury to the employee. This is without prejudice, of course, to the right of the employee or his heirs to claim further damages against any other responsible person who is not covered under the labour laws.  Liability All competent adults are liable, or legally responsible, for their own acts both in their jobs and in their private lives. In the work place, employers carry liability insurance to cover situations in which employees or anyone else on the premises, maybe injured or harmed. As employers, physicians have general liability for: The practice s building and grounds. Automobiles. Employee safety. In addition to general liability, physicians and other health care providers have certain professional liability. Court case: A patient stepped on something protruding in a hospital parking lot. She fell, breaking her foot. She subsequently sued the hospital. A jury ordered the hospital to pay her $ 70,000, and the supreme court affirmed. 40 40  Hospital Liability: The hospital operates through a governing board in which its authority is invested. The existence of this authority creates certain duties and liabilities for governing boards and their individual members. Major responsibilities and legal risk: The hospital is responsible for failing to meet the standards of care required within the hospital. 41 41  Some of the duties of the hospital board are: 1. Maintain professional standards. 2. Provide adequate and competent medical staff. 3. Provide adequate facilities and equipment. 4. Grant medical staff privileges in the hospital, 1. by determining the scope and limit of the physician 's practice in the hospital. 5. Supervision of staff and management of hospital. 6. Disciplining procedures of health care professional. 47  Physician Liability: The wide range of authority in treating patients has brought with it a broad range of law suits. 43 Examples of situations where physicians tend to be most vulnerable to lawsuits are: 1. Abandonment. 2. Patient falls. 3. Wrongful death. 4. Delay in treatment. 5. Failure to follow- up. 6. Failure to disclose/ informed consent. 7. Failure to order diagnostic tests. 8. Failure to seek consultation or to refer to a medical specialist. 9. Infections. 10. Lack of documentation. 11. Misdiagnosis. 49 sub-Outcome 03: Define the meaning of standard of care and explain its role in medical malpractice cases It is the level and quality of care that a reasonably prudent professional would have rendered in the same or similar circumstances. A reasonably prudent professional is someone with average intelligence and comparable training and experience. Standard of care for the different health care professions are well established and can be obtained from: 1.State laws and regulations governing the pertinent profession. 2.professional associations and accrediting organizations. 3.Internal policies and procedures of the health care facilities. 4.Expert testimony. Procedures & Policy related to authorized & unauthorized practice. 45 45  Profession A profession is a particular area of employment that people enter following a program of study and the achievement of a formal qualification. The area of training is normally specialized and it is expected that no other person could perform that job, without having completed the study program. A profession must be legally approved. 46 46  There are a number of C H A R A C T E R I S T I C S of a profession. 1. Community benefit 2. The work undertaken by a professional is normally directed towards a general community benefit, rather than to individual self interest. 3. i Professional responsibility 4. There is recognition of responsibility towards clients, employers, and public. 5. Worker autonomy 6. There is an expectation of worker autonomy. This means that, given the training undertaken, you are capable of using your own judgment & you have freedom to control your work. 7. Controlled by a professional association 52  The work & behavior of professionals is normally controlled by a professional association. A profession needs to be accepted as such, by the society. Once the professional association has been granted legal approval, its members have an exclusive right to work in this field. Believing that people outside of the profession are not well qualified to judge its members competence, the professional association sets standards of service, recruitment, education and training, and member discipline; it decides on an appropriate code of ethics and further regulates the member's behavior with a code of conduct. This contrasts with non-professions, where Ministries set work standards and define community interests. 53  Competence: When we talk of working in a 'professional manner', we really mean that we are competent at what we do. This means that the worker uses their knowledge & is able to complete the required task(s) effectively & efficiently, as per their association's required method of work practice. It is expected that professionals undertake ongoing educational activities to maintain their knowledge & skills. The ability to do what is needed 49 49 Professional competence means working to the standards set by your governing association. Your work must be conducted at a level to which you are trained, be recorded accurately & be open to evaluation. In other words, you are accountable for the work you do. 55  Accountable To be responsible for your work & be able to demonstrate how the quality of your work was monitored & evaluated. Professional accountability means working to practice guidelines & requires that you apply methods of quality control to all your work activities. The quality of your work must be demonstrable to your clients (the public), the organization you work for and your professional association. 56  Code of practice A collection of laws &/or rules that guide professional work behavior. A code of practice can include guidelines &/or required standards for the following: 1.standards of behavior, 2.specific activities & work practices, 3.maintenance of records, 4.d scope (extent & limits) of responsibilities, 5.ethical code of practice, 6.governing laws & rules outlined in other codes to which the professional is also accountable, such as reasons for disciplinary action. 7.requirements for ongoing education. 52 52