4. The Facts
• Dr. Evans gave the plaintiff a cursory breast examination
during a routine physical evaluation on May 26.
• The day after, plaintiff discovered a small mass in her right
breast.
• Plaintiff sought an additional medical examination the next
day, May 27, but was not seen until June 21.
• Every day from May 27 to June 21 the plaintiff signed the
clinic list and gave the reason for the medical examination.
• The Nurse claims there was no measuring tool (a ruler)
available to measure the mass on June 21.
4
5. Facts cont.
• One June 28, Dr. Evans sees the plaintiff again, failing to
measure the mass, and incorrectly recording in the progress
notes that the plaintiff’s right wrist had the mass when in fact
it was the plaintiff’s right breast.
• September 28, the plaintiff was transferred to the Franklin
County Prerelease Center. Patient received a mammogram,
and a golf-ball sized lump was found. The tumor was probably
malignant.
• November 16, the plaintiff was seen by Dr. Lidsky, a surgeon,
and a mastectomy was performed which resulted in nearly
removing the plaintiff’s entire right breast.
5
7. Tort Law
A Definition
A tort is a Civil wrong, other than a breach of
contract, committed against a person or
property (real or personal) for which a court
provides a remedy in the form of an action for
damages.
What are the objectives of tort law?
7
8. Objectives of Tort Law
1. Culpability: Find fault for wrongdoing.
2. Deterrence: of wrongful acts thru the assessment of
monetary damages.
3. Preservation: of peace between individuals.
4. Compensation: to indemnify injured person/s.
What are the basic 3 categories of tort law?
8
9. Categories of Tort Law
1. Negligent
2. Intentional
– e.g., assault, battery, false imprisonment, and
invasion of privacy
3. Strict liability regardless of fault,
intensions, or negligence
– e.g., products liability
Differences between negligent & intentional torts?
9
10. Negligent & Intentional Torts
1. Intent
a. present in intentional torts but not in negligent
torts.
2. Willful Act
a. intentional torts always involve a willful act.
b. a negligent may not involve any wrongdoing.
What is negligence?
10
11. Negligence
Negligence is a tort. It is the “unintentional”
commission or omission of an act that a
reasonably prudent person would or would not
do under given circumstances.
What is commission of an act?
11
12. Commission of an Act
• Administering the wrong medication
• Administering the wrong dosage of a medication
• Administering medication to the wrong patient
• Performing a surgical procedure without patient
consent
• Performing a surgical procedure on the wrong
patient
• Performing the wrong surgical procedure
What is omission of an act?
12
13. Omission of an Act
• Failing to conduct a thorough history & physical
examination
• Failing to assess & reassess a patient's nutritional
needs
• Failing to administer medications
• Failing to order diagnostic tests
• Failing to follow up on abnormal test results
What is malpractice?
13
14. Malpractice
Negligence or carelessness of a professional
person (nurse practitioner, pharmacist,
physician, physician’s assistant, etc)
For example, a surgeon who conducts a surgical
procedure on wrong body part
What is criminal negligence?
14
15. Criminal Negligence
The “reckless disregard” for safety of another.
The willful indifference to injury that could
follow an act.
Three forms of negligence?
15
16. Forms of Negligence
1. Malfeasance
2. Misfeasance
3. Nonfeasance
What is malfeasance?
16
17. Malfeasance
Execution of an unlawful or improper act
e.g., performing a partial birth abortion in the 3rd
trimester when prohibited by law
What is misfeasance?
17
18. Misfeasance
Improper performance of an act, such as the
removal of a healthy left kidney instead of the
diseased right kidney
What is nonfeasance?
18
19. Nonfeasance
Failure to act when there is a duty to act
For example, failing to order diagnostic tests or
prescribe medications that should have been
ordered or prescribed under the circumstances
Two degrees of negligence?
19
20. Degrees of Negligence
1. Ordinary Negligence
2. Gross Negligence
What is ordinary negligence?
20
21. Ordinary Negligence
Failure to do under the circumstances what a
reasonably prudent person would or would not
do.
What is gross negligence?
21
22. Gross Negligence
Intention or wanton “omission of care” that would
be proper to provide or the “commission of an
act” that would be improper to perform.
What are the elements of negligence?
22
23. Elements of Negligence
1. Duty to Use Due Care
− Standard of care
2. Breach of Duty
3. Injury/Actual Damages
4. Causation
− Proximate Cause
− Foreseeability
What is duty to care?
23
24. I. Duty to Care
A legal obligation of care, performance, or
observance imposed on one to conform to a
recognized standard of care to safe guard the
rights of others.
24
25. Examples of Duty
• Duty to treat emergency patient
• Duty to provide timely care, stabilize, and
transfer
• Duty to hire competent employees
What is standard of care?
25
26. Standard of Care
• The Standard of Care describes the conduct expected of an
individual in a given situation.
• The general Standard of Care that must be exercised describes
what a “reasonably prudent person” would or would not act
under the “same or similar circumstances.”
• It is measuring stick for properly assessing actual conduct
required of an individual.
• The reasonableness of conduct is judged in light of the
circumstances apparent at the time of injury and by reference to
different characteristics of the actor (e.g., age, gender, physical
condition, education, knowledge, training, and mental capacity).
Describe a reasonably prudent person.
26
27. Reasonably Prudent Person
Describes a nonexistent, hypothetical person
who is put forward as the community ideal of
what would be considered reasonable
behavior.
What is meant by similar circumstances?
27
28. Similar Circumstances
• Circumstances at the time of the injury.
• Circumstances of the alleged wrongdoer/s at the time
of injury.
– Age
– Physical condition
– Education & training
– Licenses held
– Mental capacity, etc.
How is the standard of care determined?
28
29. Determining Std. of Care
• Established by a legislative enactment or administrative
regulation.
• Adopted by the court from a legislative enactment or an
administrative regulation.
• Established by judicial decision.
• Applied to the facts of the case by the trial judge or jury,
if there is no such enactment, regulation or decision.
– courts often rely on the testimony of an expert witness
as to the standard of care required .
Community standard of care vs. national standard of care?
29
30. Duty Created by Statute
• The defendant must have been within the
specified class of persons outlined in the
statute
• The plaintiff must have been injured in a way
that the statute was designed to prevent
• The plaintiff must show that the injury would
not have occurred if the statute had not been
violated
30
31. Community v. National Std
• Community Standard
– the hometown standard - we want to do things our
way
• National Standard
– most currently accepted standard of care on a
national basis.
31
32. Ethics & Standard of Care
• Some medical standards of care are influenced
by medical ethics
• For example, a decision concerning
termination of resuscitation efforts is an area in
which the standard of care includes an ethical
component
32
33. Case: Hiring Practices
Nurse hired sight unseen over telephone. Applicant
falsely stated in an employee application that he was
licensed as an LPN. His license was not verified by
the employer. He had committed 56 criminal offenses
of theft. He assaulted a resident a resident & broke his
leg.
What was the duty of the employer?
33
34. Case: Hiring Practices
Employer’s Duty
• Standard expected:
– The employer had a “duty” to validate the
nurse’s professional license.
What is breach of duty?
34
35. II. Breach of Duty
• The failure to conform to or the departure from a
required obligation owed to a person.
• The obligation to perform according to a standard of
care may encompass either doing or refraining from
doing a particular act.
• Deviation from the recognized standard of care.
• Failure to adhere to an obligation.
• Failure to conform to or the departure from a required
duty of care owed to a person.
35
36. Breach Of Duty
Examples
• For example, breach of duty occurs when
– a physician fails to respond to his/her on-call
duties.
– an employer fails to adequately conduct a pre-
employment check (e.g., licensure, background
check).
Example of a breach of duty
36
37. Case: Hiring Practices
Breach of Duty - I
Nurse hired sight unseen over telephone. Applicant
falsely stated in an employee application that he
was licensed as an LPN. His license was not
verified by the employer. He had committed 56
criminal offenses of theft. He assaulted a resident
a resident & broke his leg.
What was the breach of duty?
37
38. Case: Hiring Practices
Breach Of Duty - II
• The employer failed to verify the applicant’s
licensure.
• A more thorough background check should
have revealed this employee’s previous
criminal conduct.
Discuss the element of injury.
38
39. III. Injury
• Actual damages must be established.
• If there are no injuries, no damages are due.
39
40. Case: Hiring Practices
Injury - I
Nurse hired sight unseen over telephone. Applicant
falsely stated in an employee application that he was
licensed as an LPN. His license was not verified by
the employer. He had committed 56 criminal offenses
of theft. He assaulted a resident & broke his leg.
What was the injury?
40
41. Case: Hiring Practices
Injury - II
• The resident suffered a broken leg.
• Note:
– Hospital vicariously liable for nurse’s conduct.
– Criminal charges are applicable in this case against
the nurse.
What is causation?
41
42. IV. Causation
• Reasonable anticipation that harm or injury is
likely to result from an act or an omission to
act.
• Act or conduct in departing from recognized
standard of care must be cause of patient’s
injury.
• Injury must have resulted from breach of duty.
• Injury must have been foreseeable.
42
43. Eliminating Causes
Another way to establish the causal relationship
between the particular conduct of a defendant
and a plaintiff’s injury is through the process
of eliminating causes other than the
defendant’s conduct.
43
44. Case: Hiring Practices
Causation- I
The nurse was hired sight unseen over telephone.
Applicant falsely stated in an employee
application that he was licensed as an LPN. His
license was not verified by the employer. He had
committed 56 criminal offenses of theft. He
assaulted a resident & broke his leg.
44
45. Case: Hiring Practices
Causation Established
• Reasonable anticipation that harm or injury
was likely to occur.
– The patient suffered a broken leg
• Departing from recognized standard of care
– failure to verify licensure & conduct an adequate
background check
• Injury resulted from the breach of duty.
• Injury was foreseeable.
45
46. Case: Failure to Hydrade
Causation
• Failure to administer proper hydration.
– Not unreasonable to conclude that one’s
dehydration can be caused by failing to provide
water.
Describe what is meant by foreseeability.
46
48. Test for Foreseeability
The test for foreseeability is whether a person of
ordinary prudence and intelligence should
have anticipated danger to others caused by his
or her negligent act.
What is causation?
48
49. Case: Hiring Practices
Foreseeability
A person of ordinary prudence and intelligence
should have anticipated the danger to the
resident caused by the employer’s negligent
act.
49
50. Case: Hot Radiator
Foreseeability
A patient’s left foot came in contact with a
radiator and she suffered third-degree burns.
The defendant had knowledge of the
plaintiff’s condition. The defendant should
have shielded the radiator or not placed the
plaintiff next to it.
50
51. Cases: Foreseeability
• O’Neill v. Montefiore Hospital – 1960
– O’Neil visits ER at 5:00 AM with chest pains.
• Niles v. City of San Rafael – 1974
– Kelly Niles suffers head injury.
• Hastings v. Baton Rouge Hospital – 1985
– 19 year old with stab wounds to the neck
51
52. Surgery:
Sponge & Instrument Count
Dr. Smith owns the local “Outpatient Surgery Center.” He
instructs employees to count all instruments & surgical
sponges following a surgical procedure, prior to closing
the surgical site. Annie, an employee, failed to conduct
the count following Bill’s surgery. Two months later,
Bill, suffering from extreme abdominal pain was noted
to have several sponges and an instrument in his
abdomen. He had developed a massive infection.
Will Dr. Smith be liable for Annie’s negligence?
52
53. Decision
Sponge & Instrument Count
Yes, even though Annie had strict instructions to count
the sponges & surgical instruments prior to closing
the surgical site, she failed to do so. To determine
otherwise would undermine the doctrine of vicarious
liability, since employers would almost always escape
liability by presenting evidence that employees were
given careful instructions.
53
54. Failure to Follow Instructions
Sarah has a minor surgical procedure under general
anesthesia at ABC Surgery Center. She was
instructed not to drive home after release. Her
daughter Leslie picks her up. On the way home Leslie
stops for a donuts. Meanwhile, her mother moves to
the driver seat. Upon leaving the parking lot Sarah
hits Carol’s car. Carol sustains a broken arm & sues
ABC for releasing Sarah before she is completely
recovered from the anesthesia.
Is ABC responsible for Sarah’s injuries?
54
55. NO!
Sarah was negligent. Not the hospital. She failed
to adhere to both verbal & written instructions
not to drive following anesthesia. It was
Sarah’s duty not to drive and her breach of that
duty that caused Carol’s injury.
55
56. Remember
The four elements of negligence must be presented in
order for the plaintiff to recover damages caused by
negligence.
56
57. Intentional Torts
• Assault and Battery
• False Imprisonment
• False Arrest
• Defamation of Character
• Fraud
• Invasion of Privacy
• Intentional Infliction of Mental Distress
57
58. Assault and Battery
• Assault – deliberate threat, coupled with
apparent ability to do physical harm to another.
Actual contact not necessary.
• Battery – intentional touching of another’s
person in socially impermissible manner
without person’s consent.
58
59. Assault
1. Person attempting to touch another
unlawfully must possess apparent present
ability to commit battery.
2. Person threatened must be aware of or have
actual knowledge of an immediate threat of a
battery and must fear it.
59
60. Battery
• Failure to obtain consent prior to surgery.
• Administering blood against patient’s express
wishes.
• Physically restraining one who refuses to eat.
60
62. False Imprisonment
• Restraining patient without cause.
• Locking patient in secluded room for failing to
attend therapy session.
62
63. Legal Justification for Restraint
or Seclusion
• Person represents a danger to self or others.
• Criminal conduct.
• Persons with highly contagious diseases, as
provided by state or federal statutes.
63
64. Reducing Use of Restraints
• Development of policies and procedures that
conform to state & federal guidelines
• Education & orientation of staff
• Education for patients & families
• Sound appraisal of need for restraints
• Application of least restrictive restraints
• Continuous monitoring of patients to determine
continuing need for restraints
64
65. Defamation of Character
• The offense of injuring a person’s character,
fame, or reputation by false & malicious
statements.
• False oral or written communications to
someone other than person defamed that tends
to hold that person’s reputation up to scorn or
ridicule in eyes of others.
65
66. Defamation of Character
• Libel – written form of defamation
– Signs
– Letters
– Photographs
– Cartoons
• Slander – oral form of defamation
66
67. Proof of Defamation
• A false & defamatory statement.
• Communication of a statement to a person
other than the plaintiff.
• Fault on the part of the defendant.
• Special monetary harm.
67
68. Proof of Harm Not Required
to recover damages when:
• Accusing a person of a crime.
• Accusing a person of having a loathsome
disease.
• Using words are harmful to to a person’s
profession or business.
• Calling a woman unchaste.
68
69. Libel – Performance Appraisals
• Performance appraisals are not meant for
general publication
• Appraisal must be published in defamatory manner
that injuries one reputation
69
70. Cartoon
Jack draws a cartoon depicting Paul having a
rendezvous with a new grad nurse in an empty patient
room. The incident in fact never occurred.
Is there a defamatory statement here?
70
71. YES!
A defamatory statement can take the form of a
cartoon because it is capable of adversely
affecting a person’s reputation.
71
72. Libel – Newspapers Articles
Newspaper editorial cartoon depicting 3 persons
resembling gangsters in dilapidated building,
identified as particular facility that had been closed
by state order, was an expression of pure opinion and
was protected by 1st Amendment.
72
73. Case: Accused of an Affair
Nurse Rachet suggests to Dr. Smith that he should leave
his wife Sharon because she is having an affair with
Dr. Doe. Dr. Smith writes a letter to Mrs. Doe,
repeating Rachet’s statement.
Assuming Dr. Smith’s letter is defamatory, is it libel or
slander?
73
74. Case: Accused of an Affair
False Accusation
• It is libel, even though Dr. Doe is repeating a
slanderous statement.
• The reverse is not true – the spoken repetition of a
written defamation is still considered libel.
• The rule is: once libel, always libel.
74
75. Slander
• Person who brings suit must prove special damages.
• When defamatory words refer to person in
professional capacity, professional need not show that
words caused damage.
75
76. Defenses to a Defamation Action
• Truth – no liability for defamation if it can be
shown that statement is true.
• Privilege
– Absolute
– Qualified
76
77. Absolute Privilege
• Statements made during judicial & legislative
hearings
• Confidential communications between spouses
77
79. Public Figures
• Vulnerable to public scrutiny
• Suits generally dismissed in absence of
– malice
– actual knowledge statements are false
– recklessness as to truth
79
80. Proof of Fraud
• Misrepresentation by the defendant.
• Knowledge of falsity.
• Intent to reduce reliance on. misrepresentation.
• Justifiable reliance by the plaintiff.
• Damage to the plaintiff.
80
81. Health Care Fraud
• Billing Tradename Drugs/Issuing Generic
• Office Visits/Double Billing
• Billing for Services not Rendered
• Accepting referral fees
81
82. Invasion of Privacy
• The right to
– be left alone
– be free from unwarranted publicity
– be free from exposure to public view
– be free from unwarranted intrusions into a one’s
personal affairs
– personal privacy
– have records/kept confidential
82
83. Intentional Infliction of Mental
Distress
Conduct that is so outrageous that it goes
beyond bounds tolerated by decent society.
83
84. Mental Distress
• Mental suffering includes:
• Grief
• Shame
• Public humiliation
• Despair
• Shame
• Human pride
84
85. Mental Distress
• Mother shown premature infant
Johnson v. Women’s Hospital)
• Verbally abusive physician
Greer v. Medders
85
86. Fraud
• Willful & intentional misrepresentation that could
cause harm or loss to person or property.
– e.g., purposeful concealment from patient the
presence of surgical sponges in his/her abdomen
following surgery
86
87. Strict Liability: Products
Liability of a manufacturer, seller, or supplier of
chattels to a buyer, or other third party for
injuries sustained because of a defect in a
product.
87
89. Negligence
• Duty
– Product manufactured by the defendant
• Breach
– Product defective when it left the manufacturer
• Injury
– Plaintiff/s injured by the product
• Causation
– Product proximate cause of injury
89
90. Defective X-ray Unit
Mindy places Candice-patient on the table of the
hospital’s newly manufacturer installed x-ray
unit. While in the control room, Mindy hears a
crash. She rushes to the patient & finds that a
section of the x-ray unit fell on Candice, further
injuring her already broken leg. Candice sues the
manufacturer for negligence.
Can Candice recover damages?
90
91. YES!
• Duty
– of manufacturer to properly install the x-ray unit.
• Breach
– failure to properly install the x-ray unit.
• Injury
– plaintiff suffered injury.
• Causation
– improper installation was the proximate cause of the
plaintiff’s injury.
91
92. Breach of Warranty
• Express Warranty: includes specific promises or
affirmations made by seller to buyer.
– e.g., drug manufacturer represents it product to
be free from addiction & is not
Crocker v. Winthrop Laboratories
92
93. Breach of Warranty
• Implied Warranty: one that exists by operation of
the law as a matter of “public policy” for
protection of the public.
– e.g., consumers have right to assume that food
is not contaminated
Jacob E. Decker & Sons v. Capps
93
94. Strict Liability
• Liability without fault
• Elements required to establish strict liability
– Product manufactured by defendant
– Product defective at time it left manufacturer
– Plaintiff injured by product
– Defective product proximate cause of injuries
94
95. Wrong Medication – I
Stanley refills his drug prescription at Discount Drugs, where
he has been a customer for 10 years. Prior to taking his
nightly dosage he noticed the pill appeared larger than
normal. He phoned Discount Drugs & explained his concern.
The Pharmacist assured Stanley generic drugs sometimes are
larger because of formula fillers but that the medication
dosage in his drug was correct. Stanley took the drug & never
woke up. The dosage given was 5 times that which had been
prescribed. The container from which the pharmacist filled
Stanley’s prescription had been mislabeled by the
manufacturer.
Is the pharmacy or manufacturer liable for Stanley’s death?
95
96. Wrong Medication – II
– Product was manufactured by the defendant
– Product defective at time it left manufacturer
• The drug was placed in a mislabeled container.
– Plaintiff injured by the product
• Stanley passed away in his sleep.
– Defective product proximate cause of injuries
• The mislabeled container was the proximate
cause of Stanley’s death.
96
97. Products Liability &
Res Ipsa Loquitur
• Must establish
– Product did not perform in way intended
– Product not tampered with by buyer/3rd parties
– Defect existed at time it left defendant
97
98. Products Liability Cases
• Manufacture of unsafe drugs
– Merck’s Vioxx
• Unsafe Design of Anesthesia Machine
Airco v. Simmons National Bank, Guardian
– 3 Million in punitive damages awarded
• Tainted Tylenol Capsules
Elsroth v. Johnson & Johnson
• Negligent Operation of Bovie Machine
Monk v. Doctors Hospital
98
99. Products Liability Defenses 1
• Assumption of the Risk
– voluntary exposure to risks, such as, radiation
therapy & chemotherapy
• Intervening Cause
– an IV solution contaminated by product user
• Disclaimers
– manufacturers inserts
99
100. Products Liability –Defenses 2
• Contributory Negligence
– use of product in a way it was not intended to be
used.
• Comparative Fault
– injury due to concurrent negligence of both
manufacturer & plaintiff.
100
101. REVIEW QUESTIONS – I
1. Describe the objectives of tort law.
2. Discuss the distinctions among negligent torts,
intentional torts, and strict liability.
3. What forms of negligence are described in this
chapter?
4. How does one distinguish between negligence and
malpractice?
101
102. REVIEW QUESTIONS – II
5. What elements must be proven in order to be
successful in a negligence suit?
6. Can a "duty to care" be established by statute or
contract? Discuss your answer.
7. Describe the categories of intentional torts.
8. What is the difference between Aaaault and
Battery?
102
103. REVIEW QUESTIONS – III
9. What is “defamation of character?
a. How does slander differ from libel?
b. Give an example of each.
10. When should a patient be detained in a
hospital?
103
104. REVIEW QUESTIONS – IV
11. What is Fraud?
a. Elements to establish Fraud?
12. How can a patient’s privacy be invaded?
13.What is the infliction of mental distress?
a. Give an example
104
105. REVIEW QUESTIONS – V
14. What is products liability? Describe what
legal theories an injured party may use in
proceeding with a lawsuit against a seller,
manufacturer, or supplier of goods.
15. Describe the defenses often used in a
products liability case.
105
