1. Unit 2 Tort Law

2. 2 Negligence l Conduct lacking in due care l Carelessness l Deviation from standard of care that a reasonable person would use in a particular set of circumstances l Doing something that the reasonable and prudent person would not do l Applies to professionals as well as other non professionals

3. 3 Malpractice l Tortfeasor (person committing civil wrong) must be a professional l Professional misconduct l Unreasonable lack of skill or fidelity in professional or judiciary duties l Evil practice l Illegal or immoral conduct

4. 4 Malpractice Continued l Results in injury or unnecessary suffering or death of patient l Proceeds from ignorance, carelessness, want of professional skill, disregard of established rules and principles, neglect, or a malicious or criminal intent

5. 5 Establishment of Liability l Duty owed the patient: reliance relationship, care owed of reasonably prudent nurse judged by expert testimony, published standards, and common sense l Breach of the duty owed the patient - deviation from standard care l Foreseeability: what reasonably could be expected

6. 6 Establishment of Liability Continued l Causation: Cause in fact - breach of duty owed caused injury; proximate cause - how far liability extends for consequences of action l Injury - physical, emotional, financial l Damages: General damages inherent in case; special damages such as losses, expenses; emotional damage; punitive damage

7. 7 Doctrine of Res Ipsa Loquitor - Let the thing speak for itself l Doctrine allows a negligence cause of action without all six elements l Must prove causation, injury, damages l Used in cases where for example patient was unconscious in surgery

8. 8 Locality Rule l Professional viewed by a prevailing community standard l Has been abolished in most cases l Judicial Law: Idaho Supreme Court - Buck v. St. Clair (1981)

9. 9 Locality Rule Abolished l Availability of mass media l Professional organizations and standards l Standards for accreditation of hospitals

10. 10 Intentional Torts l Tort: civil wrong committed against a person or person’s property l Not based on contracts l Three elements: l Volitional act by the defendant (not omission) l Intent to bring about consequences or appear to have intended to bring about consequences

11. 11 Intentional Torts Continued l Causation - act must be substantial factor in bringing about injury or consequences (damages need not be incurred)

12. 12 Examples of Torts l Intentional torts: assault, battery, false imprisonment, conversion of property l Quasi-intentional torts: defamation of character, invasion of privacy

13. 13 Assault l Apprehension of unwarranted touching

14. 14 Battery l Harmful or unwarranted contact with the plaintiff-patient l Single touch sufficient for tort l No harm or injury need occur to the patient l Patient need not be aware l Causation through direct or indirect contact- example: nurse dropping a tray

15. 15 Battery Continued l Unwarranted touching of patient belongings l Lack of consent most common cause

16. 16 False Imprisonment l Unjustifiable detention of person without legal warrant to confine person l Must be knowledge of imprisonment by patient for it to occur l Incompetent, mentally ill, or persons posing a threat to society may be detained against will

17. 17 Conversion of Property l Interference with right to possession of patient’s property l Need to have adequate justification of action

18. 18 Intentional Infliction of Emotional Distress l Professional conduct goes beyond that tolerated by society l Conduct calculated to cause mental distress l Conduct causes mental distress

19. 19 Invasion of Privacy l Unreasonable unwarranted interference with individual's solitude l 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

20. 20 Defamation l Comprised of slander (oral) and libel (written) l Wrongful injury to another’s reputation l Five elements l Defamatory language that adversely affects reputation l Defamatory language concerning living person

21. 21 Defamation Continued l Publication to a third party or several persons l Damage to person’s reputation l Fault on part of defendant in writing or telling another the defamatory language

22. 22 Defenses against intentional torts l 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 l Truth in defamation cases

23. 23 Defenses Against Torts Continued l Privilege - to protect public and private interests. Example - recommendation from former to prospective employer; appropriate channels used; truthful; objective terms l Disclosure Statutes: reporting of information for health reasons l Intentional torts mitigated by retraction, if provoked

24. 24 Defenses to Nonintentional Torts l Release: only compensated for negative action l Contributory negligence: patient contributes to negative action l Assumption of risk: Plaintiff understood and is partially responsible l Immunity Statutes: Example - Good Samaritan Law

25. 25 Statute of Limitation l In most states, 2 to 4 years, or with a child, until age of maturity l In North Carolina, 3 years for most cases

26. 26 Informed Consent l Expressed or implied; written or oral, complete or partial l Major exceptions: Emergency, therapeutic privilege, patient waiver, prior patient knowledge or common knowledge l Other exceptions: preservation of life, protection of minors, prevention of self destruction, maintenance of ethical integrity, protection of public’s health