Unit 2 Tort Law

Negligence  Conduct lacking in due care  Carelessness  Deviation from standard of care that a reasonable person would use in a particular set of circumstances  Doing something that the reasonable and prudent person would not do  Applies to professionals as well as other non-professionals

Malpractice  Tortfeasor (person committing civil wrong) must be a professional  Professional misconduct  Unreasonable lack of skill or fidelity in professional or judiciary duties  Evil practice  Illegal or immoral conduct

Malpractice Continued  Results in injury or unnecessary suffering or death of patient  Proceeds from ignorance, carelessness, want of professional skill, disregard of established rules and principles, neglect, or a malicious or criminal intent

Establishment of Liability  Duty owed the patient: reliance relationship, care owed of reasonably prudent nurse judged by expert testimony, published standards, and common sense  Breach of the duty owed the patient - deviation from standard care  Foreseeability: what reasonably could be expected

Establishment of Liability Continued  Causation: cause in fact - breach of duty owed caused injury; proximate cause - how far liability extends for consequences of action  Injury - physical, emotional, financial  Damages: general damages inherent in case; special damages such as losses, expenses; emotional damage; punitive damage

Doctrine of Res Ipsa Loquitor - Let the thing speak for itself  Doctrine allows a negligence cause of action without all six elements  Must prove causation, injury, damages  Used in cases where, for example, patient was unconscious in surgery

Intentional Torts  Tort: civil wrong committed against a person or person’s property  Not based on contracts  Three elements Volitional act by the defendant (not omission) Intent to bring about consequences or appear to have intended to bring about consequences Causation - act must be substantial factor in bringing about injury or consequences (damages need not be incurred)

Examples of Torts  Intentional torts: assault, battery, false imprisonment, conversion of property  Quasi-intentional torts: defamation of character, invasion of privacy

Assault  Apprehension of unwarranted touching

Battery  Harmful or unwarranted contact with the plaintiff-patient  Single touch sufficient for tort  No harm or injury need occur to the patient  Patient need not be aware  Causation through direct or indirect contact- example: nurse dropping a tray  Unwarranted touching of patient belongings  Lack of consent most common cause

False Imprisonment  Unjustifiable detention of person without legal warrant to confine person  Must be knowledge of imprisonment by patient for it to occur  Incompetent, mentally ill, or persons posing a threat to society may be detained against will

Conversion of Property  Interference with right to possession of patient’s property  Need to have adequate justification of action

Intentional Infliction of Emotional Distress  Professional conduct goes beyond that tolerated by society  Conduct calculated to cause mental distress  Conduct causes mental distress

Invasion of Privacy  Unreasonable unwarranted interference with individual's solitude  Patient has right against 1) Appropriation of plaintiff’s name or picture for defendant’s sole advantage; 2) Intrusion by defendant upon patient’s seclusion or affairs; 3) Publication by the defendant of facts that place the patient in a false light; 4) Public disclosure of private facts about the patient by hospital staff or medical personnel

Defamation  Comprised of slander (oral) and libel (written)  Wrongful injury to another’s reputation  Five elements - Defamatory language that adversely affects reputation - Defamatory language concerning living person - Publication to a third party or several persons - Damage to person’s reputation - Fault on part of defendant in writing or telling another the defamatory language

Defenses against intentional torts  Consent or implied by law through: prevention of loss of life or limb; person incapable; no reasonable reason to believe consent would not be given; reasonable person in similar circumstances would give consent  Truth in defamation cases

Defenses Against Torts Continued  Privilege: to protect public and private interests. example - recommendation from former to prospective employer; appropriate channels used; truthful; objective terms  Disclosure Statutes: reporting of information for health reasons  Intentional torts mitigated by retraction, if provoked

Defenses to Nonintentional Torts  Release: only compensated for negative action  Contributory negligence: patient contributes to negative action  Assumption of risk: plaintiff understood and is partially responsible  Immunity Statutes: example - Good Samaritan Law

Statute of Limitation  In most states, 2 to 4 years, or with a child, until age of maturity  In North Carolina, 3 years for most cases

Informed Consent  Expressed or implied: written or oral, complete or partial  Major exceptions: emergency, therapeutic privilege, patient waiver, prior patient knowledge or common knowledge  Other exceptions: preservation of life, protection of minors, prevention of self destruction, maintenance of ethical integrity, protection of public’s health