Tort Law

1. Tort Law Unit 2

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

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

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

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

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

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

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

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

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

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

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

13. Assault • Apprehension of unwarranted touching

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

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

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

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

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

19. Invasion of Privacy • Unreasonable unwarranted interference with individual's solitude • 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. Defamation • Comprised of slander (oral) and libel (written) • Wrongful injury to another’s reputation • Five elements • Defamatory language that adversely affects reputation • Defamatory language concerning living person

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

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

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

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

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

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