Professional Liability and Medical Malpractice Health Science / Practicum

Rationale The health science student needs to know ethical behavior standards and legal responsibilities.

Objectives Identify legal terms utilized in healthcare. Correlate how professional liability, privacy, confidentiality, and the elements of negligence relate to court cases on medical ethics and standards of care.

Definitions: Professional liability Mosby’s medical dictionary: Professional liability: the legal obligation of health care professionals or their insurers to compensate patients for injury or suffering caused by acts of omission or commission by the professionals.

Professional Liability……. McGraw-Hill Concise Dictionary of Modern Medicine: The obligation that a professional practitioner has to provide care or service that meets the standard of practice for his/her profession–i.e, responsibility; when a professional fails to provide the standard of practice, liability refers to the obligation to pay for damages incurred by negligent acts.

Liability – being legally responsible for your own actions. Breach – failure to comply.

Definitions: Medical Malpractice Improper, unskilled, or negligent treatment of a patient by a physician, dentist, nurse, pharmacist, or other health care professional. Medical Malpractice occurs when a negligent act or omission by a doctor or other medical professional results in damage or harm to a patient.

Key Points Competent adults are liable, or legally responsible, for their own acts, both on the job and in their private lives.

Employers are liable for their employees in regards to: 1.Building / grounds: adequate upkeep to prevent injury. 2.Automobiles: if an employee uses their own car or their employer’s car, the employer must be adequately insured in case of an accident.

3.Employee safety – employers must provide a comfortable and safe work environment.

Being responsible for our actions (or failure to act) under a responsible standard is Standard of Care. Professionals are held to a higher standard and may be held liable for negligence.

Healthcare workers must be careful in the duties they perform; if they perform duties commonly assigned to those with a higher level of training and expertise, they may legally be held to a higher standard of care.

Privacy, Confidentiality and Privileged Communication It is a healthcare professional’s ethical and legal duty to safeguard a patient’s privacy. Confidentiality is the act of holding in confidence information that is not to be released to unauthorized individuals. Privileged communication is information held confidential within a protected relationship.

Do not release information to a third party without a signed consent. When talking on the phone regarding test results, be sure no one else can hear. When leaving a message on an answering machine, just tell the patient to call the office regarding their recent appointment.

Confidentiality may be waived: If the patient sues the physician for malpractice. If the patient signs a waiver to release information.

Tort of Negligence Unintentional tort of negligence is the basis for malpractice claims. Tort is a civil wrong committed against a person or property, including breach of contract. Negligence is an unintentional tort alleged when one may have performed or failed to perform an act that a reasonable person would or would not do under similar circumstances.

Medical Professional Liability claims Medical professional liability claims are classified in three ways: Malfeasance – performance of a totally wrongful and unlawful act. Misfeasance – performance of a lawful act in an illegal or improper manner. Nonfeasance – a failure to act when one should.

Four elements of negligence: The four elements that must be present to prove a healthcare professional is guilty of negligence: Duty – a person charged with negligence owed the duty of care to the victim. Derelict – a healthcare provider breached (failed to comply) with the duty of care to the patient.

Four elements…… Direct cause – a breach of duty was the direct cause of the patient’s injury. Damages – monetary rewards sought by the plaintiffs (patients) in the lawsuit where there is a legally recognizable injury to a person.

Elements of a lawsuit: A patient feels he or she has been injured. A patient seeks the advice of an attorney. The attorney believes the case has merit, and requests copies of patient’s medical records. Pleading Phase: The patient’s attorney files a complaint with the court. A summons is issued by the court, and is delivered to the defendant.

Pleading phase, continued….. A summons is issued by the court, and is delivered to the defendant. The defendant’s attorney files an answer to the summons. A cross complaint is made and the patient files a reply.

Interrogatory or Pretrial Discovery Phase: The trial date is set by the court. Pretrial motions may be made, such as a dismissal or amendment of the original complaint. A court order (subpoena) is issued requiring that a deposition (sworn testimony) be taken.

Interrogatory phase, continued….. Someone may request an interrogatory, which is a written set of questions requiring written answers. A pretrial conference with the judge, where attorneys discuss the issues in the case.

Trial Phase Jury selection Opening statements by both attorneys Witnesses take the stand Closing statements by both attorneys The jury’s verdict The final judgment is handed down by the court.

Appeals Phase Post-trial motions are filed. Appeal the case to a higher court.

Nine out of ten lawsuits are settled out of court, but many times healthcare practitioners are asked to give testimony. Two kinds of testimony: Fact – these are only the actual facts the witness has observed. Expert – must have relevant education, skills, knowledge, and experience to be judged as an expert in the trial.

Alternate Dispute Resolution As court calendars become overcrowded, alternative dispute resolution has become increasingly popular. Alternate Dispute Resolution consists of techniques for resolving civil disputes without going to court.

Alternate Dispute Resolution Methods used are: Arbitration – a method of settling disputes where both parties abide by the decision of an arbitrator and the arbitrator is selected directly by both parties.

Mediation – a method in which a neutral third party listens to both sides and resolves the dispute. The mediator does not have authority to impose a solution.

Review of court cases: In small groups, review the court cases you are given. Identify if the court case involved liability, standard of care, privacy, confidentiality, privileged communication, negligence, or a combination of these. Then, discuss as a class.