Professional Liability and Medical Malpractice Ch 5 Professional Liability and Medical Malpractice

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 LO 5.1 Identify three areas of general liability for which a physician/employer is responsible. LO 5.2 Describe the reasonable person standard, standard of care, and duty of care. LO 5.3 Briefly outline the responsibilities of health care practitioners concerning privacy, confidentiality, and privileged communication. LO 5.4 Explain the four elements necessary to prove negligence (the four Ds). LO 5.5 Outline the phases of a lawsuit. LO 5.6 Name two advantages to alternative dispute resolution.

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. LO 5.1 Identify three areas of general liability for which a physician/employer is responsible. LO 5.2 Describe the reasonable person standard, standard of care, and duty of care. LO 5.3 Briefly outline the responsibilities of health care practitioners concerning privacy, confidentiality, and privileged communication.

Learning Outcomes (cont.) 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. LO 5.4 Explain the four elements necessary to prove negligence (the four Ds). LO 5.5 Outline the phases of a lawsuit. LO 5.6 Name two advantages to alternative dispute resolution. 4

Liability All competent adults are liable, or legally responsible, for their actions on the job and in private life LO 5.1 Identify three areas of general liability for which a physician/employer is responsible.

Physician Liability as an Employer 5-6 Physician Liability as an Employer Grounds and buildings Automobiles Employee safety LO 5.1 Identify three areas of general liability for which a physician/employer is responsible. 6

Standard and Duty of Care 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 LO 5.2 Describe the reasonable person standard, standard of care, and duty of care. 7

Reasonable Person Standard 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 LO 5.2 Describe the reasonable person standard, standard of care, and duty of care. 8

Guidelines for Health Care Practice 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 LO 5.2 Describe the reasonable person standard, standard of care, and duty of care. 9

Guidelines for Health Care Practice 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 LO 5.2 Describe the reasonable person standard, standard of care, and duty of care. 10

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 LO 5.3 Briefly outline the responsibilities of health care practitioners concerning privacy, confidentiality, and privileged communication. 11

Maintaining Confidentiality 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 LO 5.3 Briefly outline the responsibilities of health care practitioners concerning privacy, confidentiality, and privileged communication. 12

Unintentional Tort of Negligence 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 LO 5.4 Explain the four elements necessary to prove negligence (the four Ds). 13

Professional Liability Claims 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 LO 5.4 Explain the four elements necessary to prove negligence (the four Ds). 14

Four Elements to Prove Negligence 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 LO 5.4 Explain the four elements necessary to prove negligence (the four Ds). 15

The Joint Commission (TJC) 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 LO 5.4 Explain the four elements necessary to prove negligence (the four Ds). 16

The Joint Commission (TJC) (cont.) 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 LO 5.4 Explain the four elements necessary to prove negligence (the four Ds). 17

Doctrine of Common Knowledge 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 LO 5.4 Explain the four elements necessary to prove negligence (the four Ds). 18

Cases of Res Ipsa Loquitar 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 LO 5.4 Explain the four elements necessary to prove negligence (the four Ds). 19

5-20 Damage Awards LO 5.4 Explain the four elements necessary to prove negligence (the four Ds). 20

Phases of a Lawsuit Pleading phase 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 LO 5.5 Outline the phases of a lawsuit. 21

Types of Witness Testimony 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 LO 5.5 Outline the phases of a lawsuit. 22

Alternative Dispute Resolution (ADR) 5-23 Alternative Dispute Resolution (ADR) Techniques for resolving civil disputes without going to court Uses neutral mediators or arbitrators Two types Mediation Arbitration LO 5.6 Name two advantages to alternative dispute resolution. 23

Mediation Method of settling disputes without going to court Voluntary Mediator is neutral third party Mediator cannot impose a solution on parties involved LO 5.6 Name two advantages to alternative dispute resolution.

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 LO 5.6 Name two advantages to alternative dispute resolution. 25