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