Posted: September 20th, 2022

Question

M6PPquestionsTortsLiability4 M6TortsLiabilityNegligence4.ppt

HHP 4600 Law and Public’s Health

Module 6 Power Point questions on Torts, Liability, Negligence, and Malpractice

1. What is a tort?

2. What is negligence?

3. What four requirements must a plaintiff prove to recover an award for negligence?

4. What is a legal duty? Give an example where there has been a legal duty by a health professional or organization, and one where there is no legal duty.

5. How does the Good Samaritan concept protect a physician or nurse from malpractice?

6. State the entire phrase “…more probable than not…but for” phrase.

7. In what two ways might a defendant avoid liability even if the other criteria for negligence are demonstrated?

8. What is it called when all or part of the damages may have been caused by the behavior or action of the plaintiff?

9. What is vicarious liability in regards to employer-employee relationships?

10. What reasoning supports vicarious liability?

11. How do an employee and independent contractor differ? Why is this difference important to an employer? To a plaintiff filing a lawsuit for damages?

12.

What did EMTALA of 1986 require of hospitals?

13. In 2003 how did DHHS clarify compliance with EMTALA?

14. What is meant by “deep pockets” in regard to lawsuits? Why do attorneys want to know who has “deep pockets”?

7/10/20

Torts, Liability, Negligence, Malpractice

Module 6

Torts: Relationships between private individuals (not Gov.)

Torts: any civil wrong requiring compensation for damages to injured party

Essence of negligence is whether under the circumstances the harm was a result of unreasonable or negligent conduct regardless of intent.

Unintentional act, even obeying law, may be negligent.

Negligence
To recover an award for damages plaintiff must show these 4 items:
1. Defendant had a duty to prevent or to avoid harm to the plaintiff
2. Defendant failed to meet the standard of conduct
3. Damages
4. This failure of defendant was the actual and proximate cause of the damage

item 1. Element of duty

Duty or obligation recognized by law requiring the actor to conform to a standard of conduct for the protection of others against unreasonable risks, or stated another way…

Defendant either created or is responsible for the risk of harm or that the defendant is in the kind of relationship to the plaintiff that requires the defendant to protect the plaintiff from such risks, otherwise no legal duty e.g. a bystander owes no duty to the drowning victim, unless bystander created the conditions of the drowning or is in protective custody, like a lifeguard

An aside on Duty: Good Samaritan

Physician has no legal duty to treat if no relationship or condition can be attributed to provider’s actions

If ignore accident victim, no duty, therefore, no liability.

If lay person intervenes, must continue reasonable care, but not obligated to intervene

If health professional intervenes, then one has created a duty and runs the risk of malpractice liability

Good Samaritan statutes immunize providers from liability in rendering medical care at roadside or accident scenes

No American court has ever held a “good Samaritan” physician liable for providing emergency assistance

Item 2. Standard of Conduct

If duty met, then must show what standard of conduct was

Must show that standard not met

Item 3. Damages

May be one or more defendants with varying degrees of liability

Plaintiff may be found to share in liability with defendant

Defendants likely to include those with deep pockets: Institutions or individuals with financial resources.

Attorneys, plaintiffs have incentive to sue deep pocket defendants.

Item 4. Causation determination: Actual and Proximate Cause

Is defendant’s conduct sufficiently connected in time and proximity to plaintiff’s injury to justify finding plaintiff liable?

Determine if “It is probably more true than not the plaintiff’s injury would not have occurred ‘but for’ the defendant’s actions.”

Issue in causation: May have caused harm to third party, e.g. misdiagnosed contagious disease

Legitimate defenses

)

(Even if duty, standard of conduct violated, and proximity established, can defend with:

Statutory time limit to bring suit expired

“Contributory negligence” on part of plaintiff.

Areas of Potential Institutional Negligence

Vicarious liability for employees

Patients and those seeking admission

Failure to supervise adequately

Hiring and training employees

Improperly granting privileges

Employee- Employer Relations
Employers are vicariously liable for negligence for torts employees committed in course of employment because:

Employer controls employee

Employer in better financial position to insure against neglect

Employer gets benefit of employee so should share in burden of negligent conduct

Darling case

Hospitals were exempt from liability until Darling case made them liable if acting unreasonably.

What a “reasonable” hospital can do

Affirmative duty to monitor quality of care

Assure adequate staffing

Raise questions about care

Consultation and review

Courts view physician as independent contractor unless true employee of hospital

Employee or Independent Contractor

Who to sue?

When an organization performs services and creates a liability, the organization is responsible for an employee.

When an independent contractor performs services, they have no employer so are responsible for liabilities they create.

Employee or Independent Contractor

The Labor Department has guidelines for who can be considered an independent contractor. If employer does not ensure those guidelines are met, then employer may still be responsible for what is really an employee, not an independent contractor.

Attorneys have to know to ensure lawsuit is valid.

EMTALA

Emergency room must accept patient regardless of ability to pay.

Originally called Emergency Medical Treatment and Active Labor Act of 1986

DHHS regulations of 2003 clarified that:

Once patient admitted in good faith to stabilize an emergency medical condition, EMTALA was met

Updated 7/10/20

Slides developed using Wing’s Law and the Public Health, 7th ed. 2007

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