1. 6 Professional Liability and Medical Malpractice
Journal Topic: Explain the term liability and what it means for the physician and other healthcare professionals

2. 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.
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3. 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.
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4. Learning Objectives Describe two types of malpractice insurance.
Explain the law of agency.

5. 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

6. 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
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7. 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

8. Four Ds of Negligence Duty Dereliction
Responsibility established by physician–patient relationship
Dereliction
Neglect of duty
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9. 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

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

11. 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

12. 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
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13. Damages
Nominal damages
Slight or token payment awarded by court

14. 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
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15. Fraud
Medical assistants have been involved in several fraud cases in the medical office; none have been charged so far

16. 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

17. 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
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18. 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
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19. 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
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20. Defense to Malpractice Suits
Assumption of Risk
Should have signature to document that patient authorizes procedure, understands the risks, and consents to treatment

21. 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

22. 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

23. 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

24. 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

25. 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

26. 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

27. 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
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28. 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

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

30. 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

31. 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

32. 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
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33. Alternative Dispute Resolution (ADR)
Method other than court to settle disputes
Med-arb
Combination of the two

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

35. 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

36. Malpractice Prevention
General guidelines
Safety
Communication
Documentation