Tort Law PDF - Vision Colleges

Tort Law Presenter : Dr Mohammed AL-Rshoud  Distinguish between negligence and malpractice.  List the six elements of malpractice with examples in professional nursing practice.  Define the three tests currently used by courts in establishing cause-in-fact.  Analyze the doctrine of...

Tort Law Presenter : Dr Mohammed AL-Rshoud  Distinguish between negligence and malpractice.  List the six elements of malpractice with examples in professional nursing practice.  Define the three tests currently used by courts in establishing cause-in-fact.  Analyze the doctrine of res ipsa loquitur and apply it to professional nursing practice.  Compare and contrast the locality rule to a national standard.  List ways to avoid or lessen the potential of future malpractice cases.  Define and differentiate between intentional and quasi-intentional torts.  List the more commonly occurring intentional torts in healthcare settings and give an example of each. www.vision.edu.sa  Tort: A civil wrong committed against a person  Tort law: Based on fault. The accountable person either failed to meet his or her responsibility or acted below the allowable standard of care. The most commonly seen classification of law in the healthcare setting Negligence:  Conduct lacking due care  Equates with carelessness  Deviation from the standard of care.  May also include doing something that the reasonable and prudent person would not do. An example is a fall by an older adult who is being cared for by a sitter. The reasonable person in the place of the sitter has a standard of care to prevent such a fall. www.vision.edu.sa Malpractice (professional negligence)  Malpractice is the failure of a professional person to act under the prevailing professional standards or failure to foresee consequences  The tortfeasor must be a professional, such as a physician, or nurse; nonprofessionals are charged with negligence  Wrong must result in injury, unnecessary suffering, or death  Proceeds from ignorance, carelessness, want of proper professional skill, disregard for established rules and principles, neglect, or malicious or criminal intent Six Elements of Negligence or Malpractice 1. Injury is treatment-related or caused by a dereliction of professional skill. 2. Expert evidence determines a breach in the standard of care 3. Acts or omissions involved the assessment of the patient’s condition 4. Occurred within the context of the provider-patient relationship 5. Injury occurred because the patient sought treatment www.vision.edu.sa 6. The act of omission was unintentional  Most Common Categories of Malpractice and Negligence among Nurses  Failure to follow standards of care.  Failure to use equipment responsibly.  Failure to communicate, document, assess, and monitor.  Failure to act as a patient advocate. Elements of Malpractice or Negligence: www.vision.edu.sa Malpractice vs. Negligence  The public has the right to expect a higher standard of care from professionals  Higher rewards are given in cases of malpractice  Remember, malpractice is negligence as it pertains to a professional person. Therefore, the elements are the same. The only difference is the status of the person committing the action or failing to act when legally required to act Plaintiff Must Prove:  Duty of care owed the patient  Breach of the duty owed the patient  Foreseeability  Causation  Injury  Damages www.vision.edu.sa Duty Owed the Patient  Involves how one conducts oneself  Must be shown that the duty was owed within a patient-provider relationship  Scope of duty must be proven (expert testimony, published standards, common sense) Breach of Duty  Deviation from the standard of care owed the patient  Something was done that should not have been done, or nothing was done when something should have been done. For example, an incorrect medication was administered to a patient, or a scheduled medication was omitted. www.vision.edu.sa Foreseeability  Certain events may reasonably be expected to cause specific results. For example, the omission of an ordered insulin injection to a known diabetic patient will foreseeably result in an abnormally high serum glucose level.  Most commonly occurring injuries are due to a lack of foresight, common sense, or adherence to standards of care.  Major areas of negligence lawsuits involve falls and medication errors. Causation: Injury must have occurred as a direct result of the breach of duty. Causation is frequently subdivided into the concepts of cause-in-fact and proximate cause  Cause-in-fact: The breach of duty owed caused the injury. For example, a medication is incorrectly administered in the wrong dosage, and the patient subsequently suffers direct consequences due to the medication. www.vision.edu.sa  Tests for Causation  The "But for" test answers the question if the act or omission is a direct cause of the injury or harm sustained. Would the injury have occurred "but for" the act or omission?  Substantial factor test: Was the act or omission a substantial factor in the harm? Establish a causal link between actions and injury.  Alternative causes approach. Addresses the problem in which two or more persons have been accused of negligence. When two or more defendants need to prove who caused the harm or injury www.vision.edu.sa Proximate Cause  Attempts to determine how far the liability of the defendant extends for consequences following negligent activity  Builds on foreseeability  Clear when the result is directly related; less clear when intervening variables are present  In medical malpractice cases, Provider is frequently liable for intervening forces that are foreseeable. www.vision.edu.sa Injury or Harm  Must be demonstrated by the plaintiff  May be physical, financial, or emotional harm resulting from breach of duty  Emotional injuries are generally actionable only when accompanied by physical injuries.  Pain and suffering are allowed if they accompany a physical injury but not by themselves Damages:  Compensation that attempts to restore the injured party to the party's original position. The goal is not to punish defendants but to assist the injured party Essentially four types of damages may be compensated: 1. General damages are inherent to the injury itself. Pain and suffering, permanent disability, and disfigurement www.vision.edu.sa  Essentially four types of damages may be compensated: 1. General damages are inherent to the injury itself. Pain and suffering, permanent disability, and disfigurement 2. Special damages account for all losses and expenses incurred as a result of the injury. These include Medical bills and the cost of future medical care 3. Emotional damages. If accompanied by physical harm as well 4. Punitive and exemplary damages Awarded if malicious, willful, or wanton misconduct is present; awarded to deter future misconduct www.vision.edu.sa Avoiding Negligent Torts  Treat patients and their families with respect and honesty.  Make appropriate nursing diagnoses and interventions.  First line of duty is to the patient.  Remain up-to-date on skills and education.  Base care on the nursing process model.  Document every step of the care plan and all patient's responses to interventions.  Patient has a right to education; teach patient and family upon discharge.  Delegate patient care wisely.  Adhere to the hospital's policies and procedures.  Keep your malpractice liability insurance current and know the limits of coverage. www.vision.edu.sa Cases with Multiple Defendants  Courts apportion the harm caused to the plaintiff according to each defendant's portion or percentage of actual harm.  Harm is seen as a total percentage of 100% and each defendant’s part in the harm is calculated. Doctrine of Res Ipsa Loquitur  Allows a negligence cause of action without requiring all six elements.  They cannot prove how the injury occurred or who was responsible for its occurrence.  Accident must not ordinarily occur in the absence of negligence.  Accident must be caused by an agency or instrumentality within the exclusive control of the defendant.  The accident must not have been due to any action of the plaintiff. www.vision.edu.sa Locality Rule  A professional standard of practice in a given geographic area  Arose due to a once-wide variation in patient care between urban and rural settings  Standards should be the same no matter the location of the healthcare facility. www.vision.edu.sa Avoiding Malpractice Claims  An increasing number of nurses are sued along with physicians or hospitals.  Patients and families treated well and kept informed are less likely to sue.  Know relevant law and incorporate it into everyday practice.  Stay within your area of expertise and become a lifelong learner.  Be active in professional organizations and seek opportunities to augment nurse voice, especially through updated nurse practice acts. www.vision.edu.sa The Suit-Prone Patient  Immature, overly dependent, hostile, uncooperative, unable to be self-critical, shifts blame to others; projects fear, insecurity, and anxiety  Suit-prone patients project their fear, insecurity, and anxiety to healthcare providers, overreacting to any perceived slight in an exaggerated manner  Difficulty establishing close relationships with others  Is insecure and shifts blame  Tends to be insensitive to patients' complaints  Tends to be aloof  Inappropriately delegates responsibilities to peers to avoid contact with the patient www.vision.edu.sa  Patient Education and Tort Law  Patient education, especially through discharge planning and instruction information, is one of the more visible ways of preventing malpractice claims  Many suits are filed for injuries sustained in outpatient and home settings.  Development of more formalized discharge settings  Retain a copy of the signed discharge instruction form www.vision.edu.sa  Intentional Torts  Share three common elements  Volitional or willful act by the defendant; cannot be an omission of duty  The person so acting must intend to bring about the consequences  Causation must be proved.  Assault: Any threatening or offensive action without consent or authority  Battery: Any touch of a person or belongings that is nonconsensual  False imprisonment: Unjustifiable detention without a legal warrant to confine the person  Conversion of property Unjustifiable interference with a person's property Trespass to land  Intrusion onto someone's property; e.g., healthcare facilities  Intentional Infliction of emotional distress: Conduct meant to cause mental distress www.vision.edu.sa www.vision.edu.sa  Quasi-Intentional Torts  Intent is lacking but there is a volitional action and direct causation. Damages are not an issue. o Invasion of privacy: Protection of personality and right to be left alone o Defamation: Wrongful injury to another's reputation www.vision.edu.sa  Ethical Issues and Tort Law  Tort law is based on the duty owed to the patient with exceptions for religious beliefs and health concerns.  Providers have greater ethical standards because their ability is greater and they have assumed the risks by choosing the profession.  Providers should always be available in times of emergency. Medication Errors in Healthcare Facilities and at Home  Enhance patient education of adverse reactions with herbs and over-the-counter medications.  Increase systematic measures to better assess medication compliance at home.  Nurses must disclose any medication errors. www.vision.edu.sa