Professional Liability and Medical Malpractice CHAPTER 6 Medical

Professional Liability and Medical Malpractice CHAPTER 6

Medical Malpractice Professional misconduct or demonstration of an unreasonable lack of skill with the result of injury, loss, or damage to the patient Surgical instrument left in a patient shows up on an x-ray Unexpected outcomes/negative results

Professional 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 Would a reasonable professional person have done the same?

The Tort of Negligence Feasance = performing a duty Malfeasance Performing a wrong or illegal act Ex. Stepping outside your scope of practice Misfeasance Improperly performing an otherwise proper or lawful act Poor technique leads to harm Nonfeasance Failure to perform a necessary action Ex. CPR is not administered in a doctor’s office

OR Incidents That Could Result in Litigation Misidentification of a patient Major break in aseptic technique Incorrect positioning Documentation errors Incorrect sponge, needle, or instrument counts Failure to observe critical events and take appropriate action Burns, falls, injuries Exceeding authority Improper care of specimens (loss, misidentification) Assault and battery Breach of confidentiality Invasion of privacy Defamation Use of defective instruments Improper care of patient’s property

Four Ds of Negligence Duty Dereliction Neglect of duty Direct or proximate cause Responsibility established by physician–patient relationship Breach of duty was the direct cause of the patient’s injury Damages Injuries caused by the defendant

Damages Compensatory damages: • court-awarded payment to make up for loss of income or emotional pain and suffering (past, present, and future 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

Preponderance of Evidence One side must demonstrate a greater weight of evidence than the other side The burden of proof is on the plaintiff (the patient), not the physician If the evidence is equal on both sides, the jury will usually find in favor of the physician

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

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 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

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

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

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 Should have signature to document that patient authorizes procedure, understands the risks, and consents to treatment

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

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

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

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

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

Professional Liability Civil liability cases Physical conditions of the premises Physician may be sued under a variety of legal theories Institution may be liable when regulatory standards have been violated Illegal sale of drugs

Professional Liability Promise to cure Law of agency Considered under contract law 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

Claims-made insurance: Liability 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

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

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

Malpractice Prevention See end of Chapter 6 General guidelines Safety Communication Documentation