AHS318_Sp11_u03_01_20_11_PDF - TORTS Review Law for Health...

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Unformatted text preview: 1/11/2011 TORTS Review Law for Health Care Professionals Class 3 January 20, 2011 Negligence Duty Breach Injury/Damages Causation 1 2 TORTS TORTS Standard of Care Care that is reasonably under the circumstances That care that reasonably prudent person That care that a reasonably prudent person would would provide in the same or similar circumstances Potential Pitfalls: Policies and procedures that state “the standard of care for “X” is “Y”” “ABC Company has adopted the following ABC Company has adopted the following standard standard of care” If policy so states, that will be the minimum standard of care applied 3 4 TORTS When writing policies, avoid the following: The use of words such as always, never, only Generally, avoid references to textbooks Specific sections may be applicable sections may be applicable When possible avoid referencing other policies TORTS TORTS – Part II The greater the specificity, the greater the level of scrutiny 5 6 1 1/11/2011 Torts TORTS TORTS Intentional Torts: To establish a prima facie case for an intentional tort, the Plaintiff must prove the following: the following: Statute of Limitations Time period in which an action must be brought Volitional act by the defendant Intent Causation Generally runs from the date of the Generally runs from the date of the occurrence occurrence State statutes will vary Alabama – generally, medical malpractice suits are to be brought within 2 years Notice 7 8 TORTS TORTS Intentional Torts Continued Volitional movement by the defendant Intent Specific – goal is to bring about specific consequences General – substantial certainty consequences will result Intentional Torts Continued Transferred intent – defendant intends to commit tort against one person but instead (i) commits different tort against instead (i) commits a different tort against that that person, (ii) commits the same tort against a different person, or (iii) different tort against a different person 9 10 TORTS TORTS Intentional Torts Continued Transferred intent limited to: Causation Assault Battery False Imprisonment Trespass to land Trespass to chattels 11 Result must have been legally caused by defendant’s act or something set in motion by him Causation is satisfied if defendant’s conduct was a substantial factor in the bringing about the injury 12 2 1/11/2011 TORTS EVERYONE TORTS IS CAPABLE OF INTENT: INCAPACITY AND MENTAL INCAPACITY AND MENTAL INCOMPETENCY INCOMPETENCY WILL NOT BE A GOOD DEFENSE Intentional Torts: Assault Battery False Imprisonment False Imprisonment Intentional Infliction of Emotional Distress Trespass to Land Trespass to Chattels Conversion 13 14 TORTS TORTS Assault An act by the defendant causing a reasonable apprehension in the plaintiff of an immediate harmful or offensive contact to plaintiff’s co to person Must have intent and causation Battery A harmful or offensive contact to plaintiff’s person Consent may be expressed or implied Plaintiff’s person includes the plaintiff and anything connected to the plaintiff (i.e., clothing) Example of battery - performing a procedure without consent 15 16 TORTS TORTS False Imprisonment An act or omission on the part of the defendant that confines or restrains the plaintiff to a bounded area to bou Must have intent and causation Plaintiff must be aware of the confinement Bounded area means no reasonable means of escape 17 False Imprisonment continued Issues with restraints NonNon-compliant patient wants to leave healthcare facility healthcare facility AMA discharges Have patient sign form Document circumstances in the medical record Infection control protocols Protocols for handling intoxicated persons 18 3 1/11/2011 TORTS TORTS Intentional Infliction of Emotional Distress An act by the defendant that is extreme and outrageous Exceeds the bounds of decency continuous Exceeds the bounds of decency, continuous, direct toward a specific type of plaintiff, generally committed by a certain type of defendant (common carrier, innkeepers) Intent or recklessness Causation Intentional Infliction of Emotional Distress Damages must be severe emotional distress Example Mishandling a corpse 19 20 TORTS TORTS Trespass to Land Trespass to Chattels The physical invasion of plaintiff’s real property Conversion An act by the defendant that interferes with plaintiff’s right to possession An act by the defendant that interferes with plaintiff An act by the defendant that interferes with plaintiff’s right right to possession of the chattel, and interference is so severe that defendant has to pay plaintiff the value of the chattel Example – picked up classmate’s computer by mistake and returned it immediately vs.. keeping it 21 22 TORTS CONSENT Defenses to Intentional Torts Consent – can’t exceed consent given Consent Expressed (actual) Implied capacity required Self defense Deadly force is never permitted for the protection of property Defense of others Privilege Necessity Components of Informed Consent of Informed Consent 23 Expressed Implied Description of the act/procedure to be performed Risks Alternatives Outcome if procedure is not performed 24 4 1/11/2011 TORTS TORTS Defamation of Character Elements of defamation Libel Defamatory language “of or concerning” plaintiff Publication Damage to plaintiff’s reputation The written or reprinted publication of defamatory language. Slander Slander is spoken defamation Slander per se Damages to reputation are presumed Includes statements that adversely reflect on one’s conduct in a business or profession, one has a loathsome disease, one is guilty of a crime or moral turpitude, a woman is unchaste 25 26 TORTS TORTS Defense to Defamation Truth Privilege Absolute privilege Legislators during proceedings Witnesses testifying in judicial proceedings Fraud Willful misrepresentation that could cause harm or loss to a person or property Concealment of information from the Concealment of information from the patient patient Policies regarding disclosure 27 28 TORTS Invasion of Privacy TORTS Implied in the Constitution Have a right to be free from unwarranted publicity and exposure to public view, as well as the right to live one’s life without having one’s name, picture, or private affairs made public against one’s will Strict Liability Inherently dangerous activities Consent from patients or legal representative before release of information 29 Doctrine that makes a person or entity responsible for damages caused by their actions regardless of their fault act i.e., blasting Precautions will not matter 30 5 1/11/2011 TORTS TORTS Products Liability The accountability of a manufacturer, seller or supplier of chattels to a buyer or other third party for injuries sustained because of a defect in a product Can base claim on negligence, breach of warranty, and strict liability Types of product defects – design manufacturing, labeling (book refers to marketing) Warranty A warranty is a particular type of guarantee concerning goods or services provided by a seller seller to a buyer eller uyer To succeed, plaintiff must prove there was a warranty that was either expressed or implied Must provide proper instructions for use; must foresee likely uses of product, must warn user of product 31 32 TORTS Express Warranty TORTS Be aware of promises and guarantees made in advertisements advertisements/marketing materials An express warranty includes a specific promise or affirmation made by the seller to the buyer, such as “X” drug is not subject to addiction Implied warranty An implied warranty is a guarantee of a product’s quality that is not expressed in a purchase contract; assumes that the item sold can perform the function for which it is designed 33 34 TORTS TORTS Warranty and Products Liability Blood is considered a service and incidental to the patient’s hospitalization vs.. a product Elements of Strict Liability 35 The product must have been manufactured by the defendant The product must have been defective at the The product must have been defective at the time time it left the manufacturer The plaintiff must have been injured by the specific product The defective product must have been the proximate cause of injury to the patient 36 6 1/11/2011 TORTS Torts Res Ipsa Loquitur “The thing speaks for itself” The product did not perform in the way intended The product was not tampered with by the buyer or third party The defect existed at the time it left the defendant manufacturer Defenses to Products Liability Assumption of the risk – voluntary exposure to the risk Intervening cause cause Contributory negligence Comparative fault Disclaimers 37 38 CONTRACTS CONTRACTS Contract A legally binding agreement imposing obligations on the imposing obligations on the parties parties to the contract; parties to the agreement have a legal remedy for breach 39 40 CONTRACTS CONTRACTS Expressed vs.. Implied Contracts Expressed i.e., minor will be able to avoid legal obligations Exclusive Contract Implied One party has the right to escape its legal obligation Written Oral Voidable Contract Generally ancillary agreements ancillary agreements i.e., Radiology contract Executory Contract Inferred by law based on party’s actions or conduct Executed contract 41 One in which something remains to be done All of the obligations have been performed 42 7 1/11/2011 CONTRACTS Elements of a valid contract 1. Mutual assent of the parties 2. Offer 3. Acceptance 4. Consideration 5. Capacity Enforceable vs.. Unenforceable Enforceable contract CONTRACTS Valid, legally enforceable contract Have a legal remedy for breach Unenforceable contract Has a defect No legal remedy 43 44 CONTRACTS CONTRACTS Authority Who in the organization has the authority to bind organization to contract Consideration Corporate Bylaws CEO or his designee Agents – one who has the power to contract for or bind another who is known as the principal Apparent Agent – an agent that a third party believes is acting on behalf of the principal If determined to be an apparent agent, the principal will be bound by the agent’s actions Money Forbearance to sue or prosecute a claim 45 46 CONTRACTS Breach CONTRACTS Conditions A breach occurs when there is a violation of one or more terms of the agreement Elements that must be established to prove a breach breach 1. 2. 3. 4. Condition Precedent A valid contract was executed The plaintiff performed as specified in the contract The defendant failed to perform as specified in the contract The plaintiff suffered damages as a result of the breach Must occur before absolute duty of immediate performance arises in the other party Condition Subsequent Cuts off an already existing duty of performance – parties are under liability to other but one is excused from performance if the condition is not met 47 i.e.., notify insurance company of “xx” 48 8 1/11/2011 CONTRACTS CONTRACTS Be aware of the risks for the buyer and seller during transport of goods Defenses Make sure you read contract and understand who is liable for damages during transit who is liable for damages during transit Be aware of shipping terms Performance issues Mistake of fact Incapacity Infancy Impossibility Fraud Failure to perform Remedies Money damages Specific performance Revocation 49 50 CONTRACTS CONTRACTS Money Damages Mitigation of Damages Aggrieved party has a duty to mitigate damages Compensatory damages – awarded in an attempt to restore the aggrieved party in the position he would have been had the breach not occurred General damages – those that can be expected to arise from a breach – they are foreseeable Consequential damages – occurred because of the breach; not foreseeable 51 52 CONTRACTS CONTRACTS Independent Contractors An individual who agrees to undertake work without being under the direct control or direction of another Make sure contract is clear as to the relationship among the parties Hospitals have been held liable for acts of physicians Hospitals have been held liable for acts of physicians even even though physician was an independent contractor Independent contracts are personally responsible for their own negligent acts Key factor – control Some factors to consider Payment vs. salary, tools used to perform services, scheduling, supervision, etc. Ambiguities Effective date Non parties - Third Parties 53 Blue pencil Assignment Merger clause Statute of Limitations – generally 6 years for contract Li actions Hold harmless clauses Term, termination, renewals, notice of intent not to renew General Issues i.e., sponsors for nursing home residents 54 9 1/11/2011 CONTRACTS CONTRACTS Employee Handbooks Conditions of employment ?? Offer ?? Policies and Procedures Disclaimers Right to Work State Employment Contracts – Noncompete clauses Generally will be enforced if, Reasonable in its it Geographic restraints Length of time 55 56 CONTRACTS CONTRACTS Closed vs.. Open Medical Staff Medical Staff Bylaws Can be considered a contract between the organization and the physician Fair hearing procedures hearing procedures Open Important to follow these procedures as outlined in the bylaws Generally open to anyone who applies as long as the applicant is qualified and meets criteria outlined in the bylaws Closed Membership is limited Organization needs to outline reasoning and be prepared to justify decision to have a closed medical staff 57 58 CONTRACTS Granting of Privileges Physicians CONTRACTS Restraint of trade Federal Trade Commission – FTC Limiting or terminating privileges Psychologist vs.. Psychiatrist Podiatrist vs.. Surgeon Chiropractor vs.. Orthopedist Midwives Responsible for enforcing federal anti-trust laws anti- Sherman Antitrust Act Antitrust Act Areas of concern 59 Price fixing Reduced market competition Actions that bar or limit new participants in the market Preferred provider agreements Exclusive contracts 60 10 1/11/2011 CONTRACTS Patient Transfer Agreements CONTRACTS A written document that sets forth terms and conditions under which a patient may be transferred transferred to a facility that more ransferred acility hat ore appropriately appropriately provides the kind of care required by the patient. See page 88 in text for elements Required by both state and federal laws Insurance Contracts Insurance is a form of risk management that helps reduce the risk of loss Insurer has an obligation to indemnify the th insured for losses caused by specific events Look for hold harmless language in contracts 61 62 CONTRACTS Insurance Contracts Insurance requirements outlined in contracts Concept of Vicarious Liability Provision for verification of insurance Language indicating cause for termination if party Lan fails to maintain insurance as specified in contract Liability for the actions of others Will depend on the relationship of the parties Potential cause of action if insurer fails to provide coverage Be aware of any conditions for coverage – i.e., notice, certain events that are not covered 63 64 QUESTIONS 65 11 ...
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