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A tort is a civil wrong committed against a person for which a court provides a remedy in the form of an action for damages.
Tort law has several objectives: preservation of peace; culpability; deterrence; compensation.
The main types of tort law effecting health care professionals are negligence and malpractice.
Malpractice is the negligence or carelessness of a professional person.
Negligence is a form of conduct caused by carelessness
that constitutes a departure from the standard of care generally imposed on reasonable persons.
Negligence generally involves one of the following acts:
(1) Malfeasance -- execution of an unlawful or improper act,
(2) Misfeasance -- improper performance of an act resulting in injury to another,
and (3) Nonfeasance – failure to act when there is a duty to act as a reasonably prudent person would in similar circumstances
(e.g., failing to order diagnostic tests Or prescribe medications that should have been ordered or prescribed under the circumstances).
Elements of negligence may include the following.
Duty to Care Breach of Duty
Injury / Actual Damages Causation / Proximate Cause
We’ll be looking at several cases from your reading that deal with negligence.
First, let’s examine a case dealing with the duty to provide timely care.
In the Hastings case (1986) surviving parents brought a medical malpractice action (lawsuit) for the wrongful death of their 19 year old son.
This case dealt with the duty of care because it imposes a duty on hospitals to make emergency services available to all persons.
Next we’ll discuss a case dealing with the duty to hire competent staff.
The Deerings case (1990) deals with negligent hiring. In this case, the duty of care owed by medical organization is clear.
The lesson(s) learned from the decision is that liability is imposed
on medical organization for negligently hiring an incompetent employee who it KNEW or SHOULD HAVE KNOWN was incompetent.
NOTE: The potential employee lied on his employment application.
The next case deals with the duty to care.
The Niles case (1974) deals with negligent diagnosis and treatment of head injury.
Due to negligence, the patient can now move only his eyes and neck.
The duty to care involves a responsibility to do the “right thing.” The right thing is based on an acceptable standard of care.
If breaching the standard causes harm to the patient,
not only is there a legal issue but there are ethical principles that have been violated.
Nonmaleficence, for example, requires care givers to avoid causing harm to patients.
The lesson from this case is that an organization can improve the quality of patient care rendered in the facility
by establishing and adhering to policies, procedures, and protocols
that facilitate the delivery of quality care across all medical disciplines.
NOTE: This was an $8 million jury award 40 years ago!….
Finally, we will look at the Tomcik case which deals with Intentional Torts.
In the Tomcik case (1991), the court was appalled.
The patient (who was an inmate) was diagnosed with a “mass on her right wrist” instead of right BREAST,
leading to a serious delay intreatment that fell below the medically acceptable standard of care
and led to the patient’s serious health situation (or removal of her right breast).
The decision was that both the medical personnel and facility was negligent.
Questions to Answer:
(1) Do you agree with the court’s decision? Discuss your answer (why / why not).
(2) Discuss why the court was appalled.
