Professional Liability & Medical Malpractice

1. Professional Liability &Medical Malpractice

2. We all must remember: • Health care professionals need to be on constant alert for practices that could cause an injury to the patient • All health care professionals must realize that they are responsible for their actions • The Physician / Employer assumes responsibility for their employees - Respondeat Superior

3. While people have always been liable for their own conduct - • The courts are now finding that everyone associated with negligent actions are liable for damages (monetary award to the plaintiff).

4. What is considered malpractice? • Malpractice : Professional misconduct or demonstration of an unreasonable lack of skill which results in injury, loss or damage to the patient. • The health professional was negligent or failed to perform professional duties to an accepted standard. • “An accepted standard” Standard of Care

5. Negligence An unintentional action that occurs when a person either performs or fails to perform an action that a “reasonable person” would or would not have committed in a similar situation.

6. Every mistake or error is not considered malpractice. • When a treatment or diagnosis does not turn out well, the health care professional is not necessarily negligent, as long as they acted in the Standard of Care Professionals who fail to act reasonably in the same situation are negligent.

7. Tort of Negligence • Both action and inaction can be negligent • Examples: • Failure to provide clear instructions for the patient • Case Presentation

8. Hodges v. Effingham County Hospital (Georgia 1987) • Estelle Edwards was treated in the Emergency Department of the hospital • No physician was on duty in the hospital, but a physician was “on call” • The patient was seen by the nurse; • Dr. T was called on the phone; Dr. T directed care via the telephone • Ms. Edwards was discharged from the ER

9. Edwards (cont.) • Ms. Edwards was directed to go to Dr. W’s office after discharge • Ms. Edwards went into cardiac arrest and died due to complications from a myocardial infarction

10. Decision / Reasoning • The case went to trial; The jury found for the hospital • Case was appealed; Plaintiffs claimed that the nurse’s failure to convey information to the doctor led to their mother’s death • The appellate court said that the nurse’s failure to convey the information indicated her indifference to the consequences of her behavior

11. Testimony at trial: • The plaintiff’s children testified: • ER nurses failed to relay information about their mother’s stomach pain, history of heart condition and that she had taken a nitroglycerin pill before coming to the hospital • No vital signs taken • No history of medications was taken

12. Comments: • Failure to assess the patient properly • Documentation errors • If nurses had properly assessed and properly documented, it could have been a different outcome.

13. The Four Ds of Negligence • In order to obtain a judgment for negligence, the patient (plaintiff) must show four (4) things: • 1. Duty • 2. Dereliction of duty • 3. Direct or proximate cause • 4. Damages

14. Duty • Patient must establish “duty” When a physician and a client have established a relationship. • Duty defined as obligation/responsibility to the patient • Uses the “reasonable person” standard • Nurses held to the same standard of care as other nurses (reasonable person) in same or similar circumstances

15. Dereliction or Neglect of Duty • This is neglect of duty • Plaintiff (patient) must prove that the health care provider’s performance or treatment did not comply with acceptable standard of care • Both sides will use expert testimony to say what the appropriate standard of care may be in a particular situation

16. Direct Cause • Refers to a sequence of events causing an injury • Without these events, the injury would not have happened • Cause and effect relationship between patient’s injury and defendant’s action

17. Who has to prove what? • The plaintiff must show a “preponderance of evidence” – this means that there is 51% likelihood that the defendant caused the injury • If the defense shows more evidence, the case will be found for the defense • If the evidence is equal, the case will be found for the defense

18. Res Ipsa Loquitur • “The thing speaks for itself” • Applies to law of negligence • This means that it is so obviously a problem that we do not need explanation • Examples: • Leaving a sponge in a patient during abdominal surgery • Operating on the wrong body part

19. Three conditions must be present: • 1. Injury could not have occurred without the negligence • 2. Defendant had total and direct control over the cause of injury; Duty had to be within the scope of duty owed to the patient • 3. The patient did not, could not, contribute to the cause of the injury

20. Damages • Damages = injuries to the patient caused by the defendant • Patients seek compensation in the form of $ for damages: Permanent physical disability Permanent mental disability Loss of enjoyment of life Personal injuries Past and future loss of earnings Medical and hospital expenses Pain and suffering

21. Types of Damages • Compensatory • Actual loss • May be earnings lost • Punitive • Serves as punishment to the offender • Nominal • Token payment showing that the patient’s rights were violated • Wrongful Death • Family may be able to collect for wrongful death

22. Fraud • A deliberate concealment of the facts form another person for unlawful or unfair gain • Illegal billing • Kickbacks for making referrals • Dishonesty when conducting medical research • Embezzlement • Illegal sale of drugs

23. Statute of Limitations: Remember that we have a certain period of time in which to file a suit • Note that if fraud is involved the statutes do not begin to run until the patient discovers the fraud. • Res Judicata: “The thing has been decided” (This means that the patient cannot bring a second lawsuit against the same defendant)

24. Insurance • Liability – employers carry to cover employees • Malpractice – most docs carry this • Am I as a nurse always covered under Respondeat Superior? • Not if I exceed my scope of practice • Look at pages 102-103 for case examples

25. Malpractice Prevention • General Guidelines—always act within your scope of practice!! • Safety Issues • Communication • Documentation