6 Professional Liability and Medical Malpractice Journal Topic: Explain the term liability and what it means for the physician and other healthcare professionals

Learning Objectives Define the key terms. Define the four Ds of negligence for the physician. Discuss the meaning of respondeat superior for the physician and the employee. Discuss the meaning of res ipsa loquitur. continued on next slide

Learning Objectives Explain the term liability and what it means for the physician and other healthcare professionals. List 10 ways to prevent malpractice. State two advantages of arbitration. Discuss three types of damage awards. continued on next slide

Learning Objectives Describe two types of malpractice insurance. Explain the law of agency.

Professional Negligence and Medical Malpractice Professional misconduct or demonstration of an unreasonable lack of skill with the result of injury, loss, or damage to the patient

Professional Negligence and Medical Malpractice Unintentional action that occurs when a person performs or fails to perform an action that a reasonable person would or would not have committed in a similar situation continued on next slide

The Tort of Negligence Malfeasance Misfeasance Nonfeasance Performing a wrong or illegal act Misfeasance Improperly performing an otherwise proper or lawful act Nonfeasance Failure to perform a necessary action

Four Ds of Negligence Duty Dereliction Responsibility established by physician–patient relationship Dereliction Neglect of duty continued on next slide

Four Ds of Negligence Direct or proximate cause Damages Continuous sequence of events, unbroken by any intervening cause, that produces injury and without which injury would not have occurred Damages Injuries caused by the defendant

Preponderance of Evidence One side must demonstrate a greater weight of evidence than the other side

Res Ipsa Loquitur Means "The thing speaks for itself" Three conditions must be present Injury could not have occurred without negligent act Defendant had direct control over cause of injury Patient did not and could not contribute to the injury

Damages Compensatory damages Punitive damages Court-awarded payment to make up for loss of income or emotional pain and suffering Punitive damages Exemplary damages Monetary awarded by court to person harmed in malicious and willful way; meant to punish offender continued on next slide

Damages Nominal damages Slight or token payment awarded by court

Fraud Fraud One of the fastest-growing crimes in healthcare The deliberate misrepresentation or concealment of facts from another person for unlawful or unfair gain One of the fastest-growing crimes in healthcare continued on next slide

Fraud Medical assistants have been involved in several fraud cases in the medical office; none have been charged so far

Office of Inspector General (OIG) Protects federal programs from fraudulent activities Department of Health and Human Services (HHS) Medicare; Medicaid Violation of statutes Immunity for charitable organizations

Defense to Malpractice Suits Affirmative defense Denial, assumption of risk, contributory negligence, comparative negligence, borrowed servant, statute of limitations, and res judicata Allows defendant to present evidence that patient's condition was the result of factors other than negligence continued on next slide

Defense to Malpractice Suits Denial Defense Plaintiff must prove defendant did wrongful or negligent act Most common defense Jury must determine if defendant caused injury May bring in expert witnesses continued on next slide

Defense to Malpractice Suits Assumption of Risk Prevents plaintiff from recovering damages if plaintiff voluntarily accepts a risk associated with the activity Plaintiff must know and understand risk involved, and choice to accept risk must be voluntary continued on next slide

Defense to Malpractice Suits Assumption of Risk Should have signature to document that patient authorizes procedure, understands the risks, and consents to treatment

Contributory Negligence Conduct on part of plaintiff that contributes to cause of injuries Complete bar to recovery of damages Means plaintiff will receive no monetary damages

Comparative Negligence Similar to contributory negligence Plaintiff's own negligence helped cause injury Not a complete bar to recovery of damages Allows plaintiff to recover damages based on the amount of defendant's fault

Borrowed Servant Special application of respondeat superior Employer lends an employee to someone else Employee remains "servant" of employer, but employer is not liable for any negligence caused by employee while in service of temporary employer

Ignorance of Facts and Unintentional Wrongs Health care professional should understand what is right and wrong under law Arguing that a negligent act is unintentional is not a defense

Statute of Limitations Set time period for injured party to file lawsuit Exception is rule of discovery Statute of limitations does not begin to "run" until injury is discovered Will not begin to "run" if fraud (deliberate concealment of facts from patient) is involved

Res Judicata Means "the thing has been decided" or "a matter decided by judgment" Once the court decides a case, plaintiff cannot bring new lawsuit on same subject

Professional Liability Civil liability cases Physician may be sued under a variety of legal theories Physical conditions of the premises Institution may be liable when regulatory standards have been violated Illegal sale of drugs continued on next slide

Professional Liability Promise to cure Considered under contract law Law of agency Legal relationship formed when one person agrees to perform work for another Altered medical records Federal Rules of Evidence Uniform Business Records Act

Professional Liability Who is liable? Employer may not have done anything wrong, yet still be liable

Liability Insurance Claims-made insurance Occurrence insurance Covers insured party for claims made only during the time period policy was in effect Occurrence insurance Covers the insured party for all injuries and incidents that occurred while policy was in effect regardless of when claim is made

Malpractice Insurance Covers any damages the physician/employer must pay if he or she is sued for malpractice and loses All licensed and certified medical professionals should carry malpractice insurance An expensive type of insurance Defensive medicine

Alternative Dispute Resolution (ADR) Method other than court to settle disputes Arbitration Settling dispute without judge; decision is binding Mediation Opinion of third party for nonbinding decision continued on next slide

Alternative Dispute Resolution (ADR) Method other than court to settle disputes Med-arb Combination of the two

Liability of Other Health Professionals Dental assistant Laboratory technician Medical assistant Nurse Nursing assistant Paramedic Pharmacist Physical therapist Physician assistant Respiratory therapist

Tort Reform Malpractice reform 32 states have passed reforms Some limit plaintiff's ability to sue Some cap awarded damages Difficult to place a dollar amount on a person’s pain and suffering

Malpractice Prevention General guidelines Safety Communication Documentation