1. PowerPoint to accompany Law & Ethics For Medical Careers Fourth Edition Judson · Harrison · Hicks Chapter 4—Professional Liability and Medical Malpractice Copyright © The McGraw-Hill Companies, Inc. Permission required for reproduction or display 4-1

2. 4-2 Professional Liability and Medical Malpractice Objectives Identify general liability for physician/employers Describe reasonable person standard Discuss concept of standard of care and duty of care Briefly discuss privacy and confidentiality (see Chapter 7 for detail) Identify and define the 4 D’s of negligence Discuss trial phases Know how to give testimony in a trial Discuss Alternative Dispute Resolution

3. 4-3 General Liability for Medical Practices Employers have general liability for: The practice buildings and grounds Automobiles Employee safety

4. 4-4 Reasonable Person Standard We may be held negligent if we fail to perform an act that a reasonable person would perform under similar circumstances Individuals with more training are held to a higher standard of care

5. 4-5 Standard of Care vs. Duty of Care Standard of Care That level of performance expected of a healthcare worker in carrying out his or her professional duties Duty of Care The obligation of healthcare professionals to patients and in some cases, non-patients

6. 4-6 Standard of Care for Physicians Physicians are held to the standard of care of other practitioners with similar training in the same or comparable community This means that a specialist is held to a higher standard of care in his or her specialty

7. 4-7 Standard of Care for Other Healthcare Providers Other healthcare workers are held to the standard of care of their training and expertise Healthcare workers who perform duties usually performed by those with a higher level of training may be held to the higher standard of care

8. 4-8 Privacy, Confidentiality & Privileged Communication Breach of confidentiality and /or privacy is both unethical and illegal A privileged communication is one in which confidential information is held within a protected relationship Chapter 7 provides detail of HIPAA

9. 4-9 Tort of Negligence Negligence is an unintentional tort when one may have performed or failed to have performed an act that a reasonable person would or would not have done in similar circumstances

10. 4-10 Feasance – Performance of an Act Malfeasance Performance of a totally wrong and unlawful act Example: Surgeon performs surgery on the wrong patient Misfeasance The performance of a lawful act in an illegal or improper manner Example: Surgeon performs right surgery on right patient in an improper method Nonfeasance The failure to act when one should Example: Surgeon does not perform medically necessary surgery

11. 4-11 Four D’s of Negligence Duty Person charged with negligence owed a duty to the accuser Derelict The provider of care breached the duty of care to the patient Direct Cause The breach of care was direct cause of the patient’s injuries Damages There is a legally recognizable injury/damage to the patient

12. 4-12 Res Ipsa Loquitur “The thing speaks for itself” Doctrine of common knowledge Negligent act obviously under control of defendant Patient did not contribute to accident Patient would not have been injured if reasonable care had been used

13. 4-13 Damage Awards General Compensatory For losses due to violation of patient’s rights Punitive To punish the offender Special Compensatory For losses not directly caused by the wrong Consequential For losses caused indirectly by a product defect Nominal To recognize patient rights were violated, but no actual loss was proven

14. 4-14 Elements of a Lawsuit Pleadings phase Complaint is filed and summons issued Interrogatory or Pretrial discovery Trial date set, depositions and interrogatories done, subpoenas issued Trial Phase Jury selected, witnesses testify, verdict reached Appeals Phase Post-trial motions, action of appeals court

15. 4-15 Witness Testimony Fact May be by layperson or healthcare professional Concerns only the facts witness observed Expert Given by witness with education, skills, knowledge, and experience to be considered expert in field

16. 4-16 Alternative Dispute Resolution Method of settling civil disputes by neutral mediators or arbitrators Mediation Neutral 3 rd party attempts to resolve, but has no authority to impose a solution Arbitration Neutral 3 rd party resolves and decision is binding on opposing parties

17. 4-17 Ethics Guide Discussion As a staff member in a physician’s office, you are asked by a patient if the physician has ever been sued. How do you respond? You learn that one of the community’s first responders (an EMT) is publicly stating that he will not administer CPR to a patient that may have HIV/AIDS. What is your course of action? You hear through the grapevine that a specialist that your physician often refers patients to has at least five lawsuits pending against him by patients. What is your course of action?