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Chapter 4-Professional Liability and Medical Malpractice

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Learning Outcomes Identify three areas of general liability for which a

physician/employer is responsible. Describe reasonable person standard, standard of

care, and duty of care. Briefly discuss privacy and confidentiality (see

Chapter 7 for detail). List the four elements necessary to prove negligence

(the four D’s) and explain them. Discuss elements of a lawsuit. Identify advantages to alternative dispute resolution.

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Employers have general liability for: The practice buildings and grounds

Automobiles

Employee safety

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We may be held negligent if we fail to perform an act that a reasonable person would perform under similar circumstances.

Individuals with more training are held to a higher standard of care.

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Standard of Care That level of performance expected of a health care

worker in carrying out his or her professional duties.

Duty of Care The obligation of health care professionals to patients

and in some cases, non-patients.

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Physicians are held to the standard of care of other practitioners with similar training in the same or comparable community.

This means that a specialist is held to a higher standard of care in his or her specialty.

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Other health care workers are held to the standard of care of their training and expertise.

Health care workers who perform duties usually performed by those with a higher level of training may be held to the higher standard of care.

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Breach of confidentiality and /or privacy is both unethical and illegal.

A privileged communication is one in which confidential information is held within a protected relationship.

Chapter 7 provides detail of HIPAA.

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Negligence is an unintentional tort when one may have performed or failed to have performed an act that a reasonable person would or would not have done in similar circumstances.

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Malfeasance Performance of a totally wrong and unlawful act. Example: Surgeon performs surgery on the wrong patient.

Misfeasance The performance of a lawful act in an illegal or improper manner. Example: Surgeon performs right surgery on right patient in an

improper method. Nonfeasance

The failure to act when one should. Example: Surgeon does not perform medically necessary

surgery.

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Duty Person charged with negligence owed a duty to the

accuser. Derelict

The provider of care breached the duty of care to the patient.

Direct Cause The breach of care was direct cause of the patient’s

injuries. Damages

There is a legally recognizable injury/damage to the patient.

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“The thing speaks for itself.” Doctrine of common knowledge. Negligent act obviously under control of

defendant. Patient did not contribute to accident. Patient would not have been injured if

reasonable care had been used.

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General Compensatory For losses due to violation of patient’s rights.

Punitive To punish the offender.

Special Compensatory For losses not directly caused by the wrong.

Consequential For losses caused indirectly by a product defect.

Nominal To recognize patient rights were violated, but no

actual loss was proven.

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Pleadings Phase Complaint is filed and summons issued.

Interrogatory or Pretrial Discovery Trial date set, depositions and interrogatories done,

subpoenas issued.

Trial Phase Jury selected, witnesses testify, verdict reached.

Appeals Phase Post-trial motions, action of appeals court.

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Fact May be by layperson or health care professional. Concerns only the facts witness observed.

Expert Given by witness with education, skills, knowledge,

and experience to be considered expert in field.

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Method of settling civil disputes by neutral mediators or arbitrators.

Mediation Neutral 3rd party attempts to resolve, but has no

authority to impose a solution.

Arbitration Neutral 3rd party resolves and decision is binding on

opposing parties.

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As a staff member in a physician’s office, you are asked by a patient if the physician has ever been sued. How do you respond?

You learn that one of the community’s first responders (an EMT) is publicly stating that he will not administer CPR to a patient that may have HIV/AIDS. What is your course of action?

You hear through the grapevine that a specialist that your physician often refers patients to has at least five lawsuits pending against him by patients. What is your course of action?

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