Law, Liability, & Ethics For Medical Office Professionals

Sixth Edition

Chapter 6

Medical Malpractice and Other Lawsuits

Objectives (1 of 2)

Distinguish between a cause of action for negligence and malpractice

List the elements of a medical malpractice lawsuit

Identify when there has been breach of duty to patient based on inappropriate standard of care

Analyze the legal cause of a patient’s injury and assess accountability of the employee

Give examples of the defenses available to the defendant

Identify the legal, moral, and ethical aspects of informed consent

Objectives (2 of 2)

Recognize the need for malpractice insurance

Analyze emergency situations and determine whether a situation is covered by a Good Samaritan statute

Distinguish between invitees, licensees, or trespassers and the duty of care owed to them for maintenance of equipment and premises

Define strict liability in tort

Identify a product liability cause of action

Practicing Medicine

The practice of medicine generally held to mean:

diagnosis, treatment, and/or prescription for prevention or cure of any human disease, ailment, injury, deformity, or physical or mental condition

To practice, a license is needed

Medical assistants are not licensed or certified to practice medicine

Negligence or Malpractice?

Negligence

not doing something that a reasonable person would do

Malpractice

any professional misconduct and implies a greater duty of care to injured person than reasonable person standard

Elements of a Medical Malpractice Lawsuit

To have a medical malpractice lawsuit, patient must show:

There was a relationship between physician and patient

This relationship established duty by the physician to the patient

The duty had been upheld at a professional standard of care

The physician breached duty to the patient

The patient had a resulting injury

The physician’s breach was the proximate cause of the patient’s injury

Relationship

Relationship between the physician and the patient is established by contract law

It must be shown that:

The patient consulted the physician for medical advice; and

The elements of a contract were met:

Offer

Acceptance

Consideration

Mutual assent

Res ipsa loquitur

Means “the thing speaks for itself”

Requires following three conditions:

Accident would not have occurred if reasonable care had been used

The defendant had exclusive control over cause of injury

The plaintiff did not contribute to the occurrence of an accident

Informed Consent

Physicians are often sued for malpractice because of:

Failure to adequately inform patients of drug reactions, possible adverse surgical results

Failure to adequately information patients of alternative forms of treatment

Ethical and Moral Implications

Drugs/procedures are in the research phase and physicians are experimenting on patients

Patients do not want to hear bad news from the physician.

A patient often does not remember what is said

A patient may selectively remember comments by the physician

The sicker the patient, the less accurate memory for details of pending treatment

The less educated the patient, the less accurate the recall of information

Impact of Medical Malpractice Suits

It is a devastating experience for physicians to be sued by patients for whom they have done their best. Physicians:

May feel that everyone is pointing a finger

May feel disgraced in community

May be afraid that one claim of poor treatment will negate all the good performed in a lifetime

Emotional tension increases in the home as a result of stress.

Economics

Malpractice crisis contributes to deterioration in the doctor–patient relationship, and it contributes to spiraling cost of medical care

Negative Defensive Medicine

Some physicians:

Are shying away from treatment of difficult cases

Refuse to take emergency room duty

Do not attempt new procedures

Do not employ new drugs

Refuse to treat certain classes of patients (primarily obstetric and orthopedic cases)

Analysis of the Problem

Objective is injury suffered by the patient

Subjective is alienation, anxiety, frustration, and potential anger in the patient

Risk Management Issues in the Medical Office

Manage patient relationship

Professional staff

Lack of Empathy

Empathy is one level deeper than understanding

Empathy requires vicariously experiencing the feelings and thoughts of another person

Fee Discussions

Some patients fear to initiate subject of fee, because:

They fear physician may disapprove of them

They believe physicians are not involved with finances

They do not know how to discuss money

Defenses to a Medical Malpractice Cause of Action

Five defenses available to a defendant in a medical malpractice cause of action:

Statute of limitations

Contributory negligence

Comparative negligence

Assumption of risk

Emergency

Contributory Negligence

Any unreasonable behavior on the part of patient that contributed to case of injury

Malpractice Insurance

Frequently makes headlines because of rising costs to health care providers

Is required for a professional practicing medicine

Hospitals, health care facilities, doctors, and other health care employees carry malpractice insurance

Product Liability

A manufacturer is obligated to provide:

Adequate directions for use of a product

A warning of any untoward results

Strict Liability

Used in product liability cases where:

The seller is liable for any and all defective or hazardous products that unduly threaten a consumer’s personal safety.

Product is defective and unreasonably dangerous

Premises Liability

Property owners must observe certain standards of care for the protection of others, regardless of whether they come onto the property legally or not

Persons coming on property are classified as their invitees, licensees, or trespassers

Week 6 Assignment: Part I: How the Courts Address or Respect Our Rights as Citizens – Outline

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Law, Liability, & Ethics For Medical Office Professionals