Patient Rights
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Transcript Patient Rights
Tort Law
Unit 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
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
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
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
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
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
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)
•
Causation - act must be substantial factor in bringing about
injury or consequences (damages need not be incurred)
Intent to bring about consequences or appear to have
intended to bring about consequences
Examples of Torts
Intentional torts: assault, battery, false imprisonment,
conversion of property
Quasi-intentional torts: defamation of character, invasion
of privacy
Assault
Apprehension of unwarranted touching
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 contactexample: nurse dropping a tray
Unwarranted touching of patient belongings
Lack of consent most common cause
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
Conversion of Property
Interference with right to possession of patient’s property
Need to have adequate justification of action
Intentional Infliction of
Emotional Distress
Professional conduct goes beyond that tolerated by
society
Conduct calculated to cause mental distress
Conduct causes mental distress
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
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
-
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
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
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
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
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
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