Unit 2

Tort Law

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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

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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

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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

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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

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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

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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

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Locality Rule Professional viewed by a prevailing community standard Has been abolished in most cases Judicial Law: Idaho Supreme Court -

Buck v. St. Clair (1981)

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Locality Rule Abolished Availability of mass media Professional organizations and standards Standards for accreditation of hospitals

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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) Intent to bring about consequences or appear to have

intended to bring about consequences

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Intentional Torts Continued Causation - act must be substantial factor in bringing

about injury or consequences (damages need not be incurred)

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Examples of Torts Intentional torts: assault, battery, false imprisonment,

conversion of property Quasi-intentional torts: defamation of character, invasion

of privacy

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Assault Apprehension of unwarranted touching

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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 contact-

example: nurse dropping a tray

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Battery Continued Unwarranted touching of patient belongings Lack of consent most common cause

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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

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Conversion of Property Interference with right to possession of patient’s property Need to have adequate justification of action

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Intentional Infliction of Emotional Distress Professional conduct goes beyond that tolerated by

society Conduct calculated to cause mental distress Conduct causes mental distress

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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

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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

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Defamation Continued 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

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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

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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

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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

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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

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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