Professional Liability and Medical Malpractice

1. Professional Liability and Medical Malpractice Health Science / Practicum

2. Rationale • The health science student needs to know ethical behavior standards and legal responsibilities.

3. Objectives • Identify legal terms utilized in healthcare. • Correlate how professional liability, privacy, confidentiality, and the elements of negligence relate to court cases on medical ethics and standards of care.

4. Definitions:Professional liability • Mosby’s medical dictionary: • Professional liability: the legal obligation of health care professionals or their insurers to compensate patients for injury or suffering caused by acts of omission or commission by the professionals.

5. Professional Liability……. • McGraw-Hill Concise Dictionary of Modern Medicine: • The obligation that a professional practitioner has to provide care or service that meets the standard of practice for his/her profession–i.e, responsibility; when a professional fails to provide the standard of practice, liability refers to the obligation to pay for damages incurred by negligent acts.

6. Liability – being legally responsible for your own actions. • Breach – failure to comply.

7. Definitions: Medical Malpractice • Improper, unskilled, or negligent treatment of a patient by a physician, dentist, nurse, pharmacist, or otherhealth careprofessional. • Medical Malpractice occurs when a negligent act or omission by a doctor or other medical professional results in damage or harm to a patient.

8. Key Points • Competent adults are liable, or legally responsible, for their own acts, both on the job and in their private lives.

9. Employers are liable for their employees in regards to: • 1. Building / grounds: adequate upkeep to prevent injury. • 2. Automobiles: if an employee uses their own car or their employer’s car, the employer must be adequately insured in case of an accident.

10. 3. Employee safety – employers must provide a comfortable and safe work environment.

11. Being responsible for our actions (or failure to act) under a responsible standard is Standard of Care. • Professionals are held to a higher standard and may be held liable for negligence.

12. Healthcare workers must be careful in the duties they perform; if they perform duties commonly assigned to those with a higher level of training and expertise, they may legally be held to a higher standard of care.

13. Privacy, Confidentiality and Privileged Communication • It is a healthcare professional’s ethical and legal duty to safeguard a patient’s privacy. • Confidentiality is the act of holding in confidence information that is not to be released to unauthorized individuals. • Privileged communication is information held confidential within a protected relationship.

14. Do not release information to a third party without a signed consent. • When talking on the phone regarding test results, be sure no one else can hear. • When leaving a message on an answering machine, just tell the patient to call the office regarding their recent appointment.

15. Confidentiality may be waived: • If the patient sues the physician for malpractice. • If the patient signs a waiver to release information.

16. Tort of Negligence • Unintentional tort of negligence is the basis for malpractice claims. • Tort is a civil wrong committed against a person or property, including breach of contract. • Negligence is an unintentional tort alleged when one may have performed or failed to perform an act that a reasonable person would or would not do under similar circumstances.

17. Medical Professional Liability claims • Medical professional liability claims are classified in three ways: • Malfeasance – performance of a totally wrongful and unlawful act. • Misfeasance – performance of a lawful act in an illegal or improper manner. • Nonfeasance – a failure to act when one should.

18. Four elements of negligence: • The four elements that must be present to prove a healthcare professional is guilty of negligence: • Duty – a person charged with negligence owed the duty of care to the victim. • Derelict – a healthcare provider breached (failed to comply) with the duty of care to the patient.

19. Four elements…… • Direct cause – a breach of duty was the direct cause of the patient’s injury. • Damages – monetary rewards sought by the plaintiffs (patients) in the lawsuit where there is a legally recognizable injury to a person.

20. Elements of a lawsuit: • A patient feels he or she has been injured. • A patient seeks the advice of an attorney. • The attorney believes the case has merit, and requests copies of patient’s medical records. • Pleading Phase: • The patient’s attorney files a complaint with the court. • A summons is issued by the court, and is delivered to the defendant.

21. Pleading phase, continued….. • A summons is issued by the court, and is delivered to the defendant. • The defendant’s attorney files an answer to the summons. • A cross complaint is made and the patient files a reply.

22. Interrogatory or Pretrial Discovery Phase: • The trial date is set by the court. • Pretrial motions may be made, such as a dismissal or amendment of the original complaint. • A court order (subpoena) is issued requiring that a deposition (sworn testimony) be taken.

23. Interrogatory phase, continued….. • Someone may request an interrogatory, which is a written set of questions requiring written answers. • A pretrial conference with the judge, where attorneys discuss the issues in the case.

24. Trial Phase • Jury selection • Opening statements by both attorneys • Witnesses take the stand • Closing statements by both attorneys • The jury’s verdict • The final judgment is handed down by the court.

25. Appeals Phase • Post-trial motions are filed. • Appeal the case to a higher court.

26. Nine out of ten lawsuits are settled out of court, but many times healthcare practitioners are asked to give testimony. Two kinds of testimony: • Fact – these are only the actual facts the witness has observed. • Expert – must have relevant education, skills, knowledge, and experience to be judged as an expert in the trial.

27. Alternate Dispute Resolution • As court calendars become overcrowded, alternative dispute resolution has become increasingly popular. • Alternate Dispute Resolution consists of techniques for resolving civil disputes without going to court.

28. Alternate Dispute Resolution • Methods used are: • Arbitration – a method of settling disputes where both parties abide by the decision of an arbitrator and the arbitrator is selected directly by both parties.

29. Mediation – a method in which a neutral third party listens to both sides and resolves the dispute. The mediator does not have authority to impose a solution.

30. Review of court cases: • In small groups, review the court cases you are given. Identify if the court case involved liability, standard of care, privacy, confidentiality, privileged communication, negligence, or a combination of these. • Then, discuss as a class.