unit 2 tort law. negligence conduct lacking in due care carelessness deviation from standard of...
TRANSCRIPT
Unit 2
Tort Law
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)
• Intent to bring about consequences or appear to have intended to bring about consequences
• Causation - act must be substantial factor in bringing about injury or consequences (damages need not be incurred)
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 contact-example: 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