TORT LAWTORT LAW

DUTYDUTYThe legal obligation to The legal obligation to perform …as dictated by perform …as dictated by condition of employment or condition of employment or statute. statute.

DUE CAREDUE CAREReasonable care under Reasonable care under

the circumstances. the circumstances.

Higher duty.Higher duty.

NEGLIGENCENEGLIGENCEOmission or commission of an act Omission or commission of an act that a reasonably prudent person that a reasonably prudent person would or would not do under given would or would not do under given circumstances. It is a form of circumstances. It is a form of carelessness that constitutes a carelessness that constitutes a departure from the standard of care departure from the standard of care generally imposed on members of generally imposed on members of society.society.

FORMS OF NEGLIGENCEFORMS OF NEGLIGENCE MALFEASANCE:MALFEASANCE: execution execution

of an unlawful or improper of an unlawful or improper act (e.g. administering act (e.g. administering contraindicated medication.)contraindicated medication.)

MISFEASANCE:MISFEASANCE: improper improper performance of an act, performance of an act, resulting in injury to another resulting in injury to another (e.g. administration of the (e.g. administration of the wrong medication, bathing a wrong medication, bathing a patient in scalding hot water.)patient in scalding hot water.)

FORMS OF FORMS OF NEGLIGENCENEGLIGENCE

NONFEASANCENONFEASANCE: failure to act, : failure to act, when there is a duty to act, as a when there is a duty to act, as a reasonably prudent person would reasonably prudent person would in similar circumstances (e.g. in similar circumstances (e.g. failing to order diagnostic tests or failing to order diagnostic tests or prescribe medications that should prescribe medications that should have been ordered or prescribed have been ordered or prescribed under the circumstances.)under the circumstances.)

FORMS OF NEGLIGENCEFORMS OF NEGLIGENCE MALPRACTICE:MALPRACTICE: negligence or negligence or

carelessness of a professional person (e.g. carelessness of a professional person (e.g. a nurse, pharmacist, physician, a nurse, pharmacist, physician, accountant.)accountant.)

CRIMINAL NEGLIGENCE:CRIMINAL NEGLIGENCE: reckless reckless disregard for the safety of another (i.e. disregard for the safety of another (i.e. willful indifference to an injury that could willful indifference to an injury that could follow an act.) follow an act.)

DEGRESS OF NEGLIGENCEDEGRESS OF NEGLIGENCE

ORDINARY NEGLIGENCEORDINARY NEGLIGENCE: failure to do : failure to do what a reasonably prudent person would what a reasonably prudent person would do, or the doing of that which a reasonably do, or the doing of that which a reasonably prudent person would not do, under the prudent person would not do, under the circumstances of the act or omission in circumstances of the act or omission in question. question.

GROSS NEGLIGENCE:GROSS NEGLIGENCE: intentional or intentional or wanton omission of care that would be wanton omission of care that would be proper to provide or the doing of that proper to provide or the doing of that which would be improper to do. which would be improper to do.

LIABILITYLIABILITYA determination at the A determination at the

conclusion of a legal process conclusion of a legal process that a person has been that a person has been

negligent, that negligence negligent, that negligence caused injury to another person, caused injury to another person,

and that the negligent person and that the negligent person must compensate the injured must compensate the injured person for his injury or loss.person for his injury or loss.

CAUSE OF ACTION OR CAUSE OF ACTION OR PRIMA FACIE CASEPRIMA FACIE CASE

4 D’S4 D’S1. Duty owed (Due Care)1. Duty owed (Due Care)

2. Duty Breached (by being negligent)2. Duty Breached (by being negligent)

a. Malfeasancea. Malfeasance

b. Nonfeasanceb. Nonfeasance

3. Damages (Injury)3. Damages (Injury)

4. Direct Cause or Proximate Cause (by 4. Direct Cause or Proximate Cause (by

defendant’s negligence)defendant’s negligence)

a. Substantial Factor Testa. Substantial Factor Test

Foreseeability, as an Foreseeability, as an element of negligence, element of negligence,

is the reasonable is the reasonable anticipation that harm anticipation that harm

or injury is likely to or injury is likely to result from an act or result from an act or an omission to act.an omission to act.

INTENTIONAL INTENTIONAL TORTSTORTS

ASSAULTASSAULT: threat to do : threat to do harmharm

BATTERYBATTERY: un-consented : un-consented touchingtouching

INTENTIONAL INTENTIONAL TORTSTORTS

FALSE FALSE IMPRISONMENTIMPRISONMENT

ABANDONMENTABANDONMENT

Continuity of careContinuity of care

INTENTIONAL INTENTIONAL TORTSTORTS

DEFAMATION OF DEFAMATION OF CHARACTERCHARACTER

Libel-writtenLibel-written

Slander-oralSlander-oral

DEFENSES TO A DEFENSES TO A DEFAMATION ACTIONDEFAMATION ACTION

1. TRUTH1. TRUTH

2. PRIVILEGE2. PRIVILEGE

AbsoluteAbsolute

QualifiedQualified

3. FRAUD3. FRAUD

4. INVASION OF PRIVACY4. INVASION OF PRIVACY

HIPAAHIPAA

http://www.ahima.orghttp://www.ahima.org

HIPAA PATIENT HIPAA PATIENT RIGHTS AT A GLANCERIGHTS AT A GLANCE

1. Right to request restriction of uses 1. Right to request restriction of uses and disclosures. and disclosures.

2. Right to receive confidential 2. Right to receive confidential communications. communications.

3. Right of access to information.3. Right of access to information.

4. Right to amend information.4. Right to amend information.

5. Right to accounting of disclosures.5. Right to accounting of disclosures.

INTENTIONAL TORTSINTENTIONAL TORTSFRAUDFRAUD

1. Willful, intentional1. Willful, intentional

2. Misrepresentation2. Misrepresentation

3. Untrue3. Untrue

4. Loss or Harm4. Loss or Harm

PRIVACYPRIVACY

INTENTIONAL INTENTIONAL INFLICTION OF MENTAL INFLICTION OF MENTAL

DISTRESSDISTRESSConduct that is so outrageous that it Conduct that is so outrageous that it goes beyond the bounds tolerated by a goes beyond the bounds tolerated by a decent society.decent society.

Mental Distress - mental suffering Mental Distress - mental suffering resulting from painful emotions such resulting from painful emotions such as grief, public humiliation, despair, as grief, public humiliation, despair, shame, and wounded pride.shame, and wounded pride.

Know or should have known...Know or should have known...

PRODUCTS LIABILITYPRODUCTS LIABILITYInjury as a result of defect in product.Injury as a result of defect in product.

Three legal theories:Three legal theories:

1. Negligence1. Negligence

2. Breach of Warranty2. Breach of Warranty

a. Expresseda. Expressed

b. Impliedb. Implied

3. Strict liability3. Strict liability

PRODUCTS LIABILITY PRODUCTS LIABILITY DEFENSESDEFENSES

Contributory NegligenceContributory Negligence

Assumption of riskAssumption of risk

Intervening causeIntervening cause

DisclaimersDisclaimers

TYPES OF DAMAGESTYPES OF DAMAGES NOMINAL:NOMINAL: “Token Compensation” “Token Compensation”

Plaintiff proved casePlaintiff proved case Actual loss or injury not Actual loss or injury not possible to prove possible to prove

COMPENSATORY:COMPENSATORY: “Actual Damages” “Actual Damages” GENERALGENERAL: pain, suffering, loss of : pain, suffering, loss of limblimb SPECIALSPECIAL: medical expenses, sick pay, : medical expenses, sick pay,

lost wages, travel to doctorlost wages, travel to doctor PUNITIVEPUNITIVE (EXEMPLARY): (EXEMPLARY): Wanton, reckless, Wanton, reckless,

total disregard, caused injury. total disregard, caused injury.

TYPES OF DAMAGES TYPES OF DAMAGES CONTINUEDCONTINUED

PUNITIVE (EXEMPLARY):PUNITIVE (EXEMPLARY):Wanton, reckless, Wanton, reckless,

total total disregard, caused disregard, caused injury. injury.

Intentional TortsIntentional Torts Torts of Torts of NegligenceNegligence

CriminalCriminal **CivilCivilCriminal IntentCriminal Intent * Negligence* Negligence

( (carelessness)carelessness)

Public Public (state)(state) * Individual* IndividualImprisonment/finesImprisonment/fines * Redress * Redress (damages)(damages)

Conscious & deliberateConscious & deliberate *Unreasonable*UnreasonableStatutesStatutes *Standard of Care*Standard of Care

*Community Rule*Community Rule

CHARTERSTATE

STATUTES

Medical Staff

GOVERNING

BOARD

SCOPE OF

AUTHORITY

Expressed Authority

Implied Power

By-Laws

Standard of Care

Legislation and Regulation

Administration