1. Medical Law and Ethics Chapter 6
Professional Liability and Medical Malpractice

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

3. The Tort of Negligence Malfeasance: performing a wrong or illegal act
Misfeasance: improperly performing an otherwise proper or lawful act
Nonfeasance: failure to perform a necessary action

4. Four Ds of Negligence
Duty: responsibility established by physician–patient relationship
Dereliction: neglect of duty
Direct or proximate cause: 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

5. Damages
Compensatory damages: court-awarded payment to make up for loss of income or emotional pain and suffering
Punitive or exemplary damages: monetary award by court to person harmed in malicious and willful way; meant to punish offender
Nominal damages: slight or token payment awarded by court

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

7. 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

8. Fraud
Fraud: the deliberate misrepresentation or concealment of facts from another person for unlawful or unfair gain
One of the fastest-growing crimes in health care

9. Fraud
Medical assistants have been involved in several fraud cases in the medical office; none have been charged so far
Office of Inspector General protects Federal programs from fraudulent activities

10. Defense to Malpractice Suits
Affirmative defenses: denial, assumption of risk, contributory negligence, comparative negligence, borrowed servant, statute of limitations, and res judicata
Allow defendant to present evidence that patient’s condition was the result of factors other than negligence

11. 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

12. 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

13. Assumption of Risk
Should have signature to document that patient authorizes procedure, understands the risks, and consents to treatment

14. 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

15. 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

16. 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

17. 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

18. 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

19. Res Judicata
Means “The thing has been decided” or “a matter decided by judgment”
Once court decides case, plaintiff cannot bring new lawsuit on same subject

20. 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

21. Professional Liability
Promise to cure
Considered under contract law
Law of agency
Legal relationship formed when one person agrees to perform work for another
Who is liable?
Employer may not have done anything wrong, yet still be liable

22. Liability Insurance
Claims-made 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

23. 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

24. Alternative Dispute Resolution
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
Med-arb: combination of the two

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

26. Malpractice Prevention
General guidelines
Safety
Communication
Documentation