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
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
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