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103 Cards in this Set
- Front
- Back
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What is a tort?
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A wrong that may be remedied by a civil action, e.g. a lawsuit.
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Is medical malpractice civil or criminal law?
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It is civil law and it is treated as a tort
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Is accepting a patient a form of contractual agreement?
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Yes. It is an implicit contract.
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What is the difference b/w common law and civil law?
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Common law: evolves from decisions of courts, relies heavily on precedents
Civil Law: derives origins from Roman law. The law is composed of what is passed by the legislature. |
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Who is in charge of taking a physician's license away and via what process?
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The board of medicine in an administrative hearing
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What is the "standard of care?"
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requires the physician to render medical care w/ the degree of care, skill, and learning that would be expected of a reasonably prudent physician
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What is meant by the fiduciary nature of the physician/patient relationship?
What kind of violation is a breach of fiduciary duty? |
The relationship is primarily for the benefit of the patient and they are entitled as a matter of law to trust the physician
A breach of fiduciary duty is a tort for which the physician can be sued |
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What is the physician's equivalent to the reasonable man standard?
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The reasonably prudent physician standard
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What is a derelict of duty?
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delivery of substandard care
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What is the statute of limitations for medical malpractice?
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One year
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Medical malpractice is contingent on the physician's relationship w/ the pt. being what?
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Therapeutic.
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Does most medical malpractice fall under state or federal law?
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State law
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What is medical negligence? What is fault? What must you do before you can find fault?
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Failure to comply w/ the applicable standard of care
Fault is medical negligence that was a cause of injury to the plaintiff. To find the defendent at fault, you must first find that the defendant's negligence was a cause of injury to the plaintiff |
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What are the two criteria for proving that negligence causes injury?
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1) Negligence produces the injury
2) the injury would not have happened w/o the negligence |
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On the claim of fault for negligence, the plaintiff has the burden of proving what?
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1) that the defendent was negligent
2) that the defendant's negligence was the cause of injury to the plaintiff 3) the plaintiff's damages |
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is a physician negligent if his/her efforts are unsuccessful?
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No
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What is an expert witness? Can they be an advocate or partisan in the legal proceeding?
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a physician who has some specialized (expert) knowledge of the type of medicine and standard of care at issue. He testifies his expert opinion.
No, they cannot be an advocate, be partisan, or accept any compensation that is contingent on the outcome of litigation |
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How is the standard of care established in court?
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w/ the testimony of expert witnesses
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Failure to terminate the physician-patient relationship properly is called what?
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Abandonment
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The physician/patient relationship ends when:
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-the pt no longer requires treatment
-the pt unilaterally terminates the relationship -the physician and pt. mutually agree that the relationship has ended -the physician unilaterally terminates the relationship by giving the pt notice that he will no longer serve as physician after a reasonable period of time during which the pt will have the opportunity to seek treatment from another physician |
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what kind of violation is abandonment?
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A tort
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What are the steps for proper, unilateral dismissal of a patient, and avoiding the tort of abandonment?
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1. Notify the pt. in writing
2. provide a reason 3. offer to provide care for a reasonable period of time while the pt searches for an alternative 4. provide pt w/ termination date 5. provide info a/b resources for finding and alternate 6. offer to transfer records 7. offer to see pt in an emergency 8. provide t/ w/ info a/b risks/consequences faced if medical treatment is not continued 9. chart these steps |
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What are the exceptions to the rule on patient confidentiality?
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-Child/Elder abuse
-gunshot and knife wounds -communicable and other diesaeses -imminent danger to others |
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What case held that an individual's duty to warn another of danger permits a physician to break the confidences of a patient?
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Tarasoff v. Regents of Univ. of CA
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What is given a higher degree of protection: confidential or privileged communications?
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Privileged communications
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what kinds of communications are usually privileged?
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attorney/client communications, psychiatrist/patient communications, and sometimes physician-patient communications
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ANY unauthorized touching is known as what?
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Battery
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If you are a physician conducting a pre-employment physical exam and you divulge private information, is this a breach of physician patient confidentiality?
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no, because it is not a therapeutic relationship. It is violation of the person's right to privacy.
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Why is it important to distinguish whether the physician has breached patient confidentiality or violated privacy?
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because the statute of limitations may be longer for lawsuits based on an invasion of privacy
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name four types of invasion of the right to privacy:
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1) intrusion upon the plaintiff's physical and mental solitude and seclusion
2) Public disclosure of private facts 3) publicity which places the plaintiff in a false light in the public eye 4) appropriation for the defendant's benefit or advantage of the plaintiff's name or likeness |
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what is the most common cause of invasion of privacy suits against physicians?
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unauthorized use of pt photographs
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Which court case set the precedent for establishing a pt's right to privacy?
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Griswold v. CT: court deemed that CT cannot create a law banning contraception b/c it violated pt right to privacy
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Griswold v. CT served as a precedent for the decision in favor of a pt's right to an abortion in what court case?
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Roe v. Wade
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Under HIPAA, is a physician allowed to use or release pt info for treatment w/o pt consent?
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Yes
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Can a pt sue a physician for failure to comply w/ HIPAA privacy regulations?
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No - the pt must file an administrative complaint w/ the Office of Civil Rights of the US Dpt of HHS and the agency can impose an admin. civil penalty of $100-$25,000 or a criminal penalty of up to $250,000 on the physician
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what is the difference b/w an administrative civil penalty/criminal fine and a judgment won by a plaintiff in a lawsuit?
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the govt takes all the money for admin. penalties/criminal fines, but the plaintiff is awarded the money in a lawsuit.
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Will medical malpractice insurance pay for administrative penalties or criminal fines?
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No - it will pay only for a covered act of medical malpractice
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Is HIPAA a federal or state law?
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federal
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Who is responsible for administering and enforcing the privacy rule?
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the office of civil rights w/in HHS
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If a patient file a successful complaint of HIPAA violation, who gets paid?
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the government, not the patient. The patient may still have a right to sue under state confidentiality or privacy laws
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What is the name of the physician's obligation to tell a patient if, say, a device they have had implanted is faulty?
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Duty to Warn
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If a MCO unreasonably delays approval of needed medical treatment and the opportunity for recovery is lost, what has been violated?
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The duty to prevent loss of chance for a successful outcome
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What is the difference b/w risks and consequences?
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Risks: something that might happen
Consequences: something that will happen |
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What are the exceptions to giving informed consent?
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-emergencies
-unconscious or incapacitated patient -patient waver -therapeutic privilege |
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inadequate pain management of the elderly constitutes what violation?
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elder abuse
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How can a physician protect himself when using equipment?
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-select the appropriate equipment for the task
-educate all staff in the proper use of the equipment, documenting that training -repair equipment when necessary, documenting proper repairs -maintaining equipment according to the manufacturer's guidelines |
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What was decided in Riegel v. Medtronic?
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a manufacturer of medical devices that have received pre-market approval from the FDA cannot be sued under State law.
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What information should be included when documenting patient discharge?
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the record should reflect the patient's status at discharge, his readiness to be discharged, and the patient's understanding of his condition and his continuing responsibilities after discharge
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what three things should you avoid when documenting?
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-avoid inflammatory and potentially incorrect expressions
-avoid self-congratulatory remarks -avoid criticism of other professionals |
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What are some problems and preventive measures associated with electronic medical records?
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-take care to avoid inadvertent release or disclosure of confidential or privileged information
-be prepared to notify the patient when privileged info is released inadvertently -prevent destruction of electronic info and records when litigation has begun -remember that email communications can be part of a patient's record or business record -make sure that the patient health records are fully segregated from business records -remember that electronic records may be searched electronically for metadata |
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What are the principle categories of vicarious liability?
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-Respondeat superior
-borrowed servant -captain of the ship -ostensible agency -ostensible partnership |
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What are three ways to avoid being sued?
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-Communicate w/ patients (most important)
-Maintain standard of care -Risk Management |
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What should you do when you are sued (three things)
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1) Notify your insurance carrier
2) Protect Records 3) Prepare Memorandum |
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What should you NOT do if you are sued? (three things)
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-Do not destroy or alter records
-Do not assume that alteration of electronic records can't be detected -Do not attempt to influence co-workers' opinions |
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how is a civil action commenced?
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by filing a complaint w/ the court
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if you are served w/ a summons and complaint and you don't notify your insurance carrier and answer within 20 days, what happens?
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A default judgment is entered against you
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What are the first steps in a lawsuit (3)
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1) Commencement of action
2) Summons 3) Service of process |
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If the patient is a minor, the statute of limitations may not begin to run until when?
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When the patient becomes an adult (18 y/o)
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What are the methods for obtaining discovery (6)?
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1. depositions upon oral examination
2. written interrogatories 3. production of documents or things 4. entry upon land or other property...for inspection and other purposes 5. physical and mental examinations 6. requests for admission |
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What is a motion?
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a formal request made to the court by one or more of the parties in a lawsuit
examples: motion to dismiss on the pleadings, motion to dismiss for failure to state a claim, motion for summary judgment |
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What is the empty chair defense?
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A specialist blames the GP who saw the patient first for whatever the patient is suing for.
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What is the judgment?
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the final decision of the court resolving the dispute and determining the rights and obligations of the parties
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What's the difference b/w the judgment and the verdict?
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The jury gives its decision as a verdict, but the judgment is given by the judge. The judgment may adopt the jury's verdict, set it aside, or modify it.
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When can the judge grant a motion to dismiss?
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when the plaintiff has not presented a prima facie case
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What does the term "damages" refer to?
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the amount of money for which the judgment can be enforced in a tort action
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do medical malpractice policies insure for compensatory and punitive damages?
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They insure for compensatory (economic and non-economic) but not punitive (non-compensatory) damages
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What is an occurrence-based insurance policy?
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protects the insured physician from claims made for acts of malpractice occurring during the time the policy was in effect even if the claim has been made after the policy has expired
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What is a claims-based insurance policy? What do you need to add onto it?
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protects the insured for acts of malpractice occurring during the time the policy is in effect but only if the claim is made while the policy is in effect for the individual against whom the claim of malpractice has been made
add on tail coverage |
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What is tail coverage?
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intended to protect the insured for a period of time after a claims-based policy has expired
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What is nose coverage?
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may be available to insure a physician for alleged acts of malpractice that occurred before a new malpractice policy takes effect
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What is statutory law?
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statutes/acts are laws enacted by the legislative authority (which is congress)
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What is administrative law?
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rules and regulations adopted by administrative agencies have the force of law
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What are the sources of law? (4)
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-constitutions
-legislation -administrative regulations -court cases - common law |
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What is MICRA?
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Medical Injury Compensation Reform Act - passed by CA in 1975, offers some protection to physicians in that it limits to $250,000 the amount of non-economic damages (for px and suffering) that can be collected in a suit for medical malpractice
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the medical profession is governed primarily by state or federal law?
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State
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What was Hicks v. Arkansas State Medical Board?
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the court struck down the medical board's administrative decision to include ear piercing as being part of the practice of medicine and therefore, subject to licensing and control by the board
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What are the four sources of liability?
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Tort
contract statutory liability fiduciary liability |
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What are the four requirements for claiming a tort?
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1) there was a duty to act in a particular fashion
2) there was a dereliction of that duty 3) there was damage caused 4) the dereliction of duty must have caused the damage |
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To whom are punitive damages awarded? To whom are truly punitive penalties awarded (such as fines)?
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punitive damages go to the plaintiff
fines and other truly punitive penalties are part of a sentence in a criminal case and are paid to the state |
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What are the requirements for a contract to be enforceable?
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1) the parties must have legal capacity
2) the agreement must be for a legal purpose 3) the contract must not violate public policy 4) there must be consideration |
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What is a non-competition clause?
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a clause in a physician employment contract by which the physician agrees that when his employment ends he will not compete within a specified distance for a given period of time
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what are two remedies for violating a non-competition clause?
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1) an injunction prohibiting the physician from violating the agreement on pain of being held in contempt of the court, which takes the form of fines and imprisonment
2) provision of payment for liquidated damages (which were stated and agreed upon in the original contract and are therefore enforceable) |
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What is different about elder abuse litigation?
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it may not be covered by a physician's malpractice insurance policy and the physician may also be liable for both his attorney's fees and those of the plaintiff.
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What is a declaratory judgment?
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usually sought to have the court declare the law on a specific issue rather than to seek monetary damages
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What are civil commitment proceedings?
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usually they're for the purpose of legally detaining someone against his will in a non-criminal action, such as a person who has become a danger to himself or others and is committed to a mental institution against his will
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What is required for someone to be civilly committed?
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They have to be demonstrated to be a danger to themselves or others
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what two government powers can be used to compel the involuntary detention of an individual for civil purposes?
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1) Police Power: the government's authority to restrain personal freedom for the protection of the public safety, health, and morals
2) Parens Patriae: the state may detain a person whose mental condition has reached the point of decisional incompetence |
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What specifically is required as degree of proof to commit someone on the grounds that they're a danger to themselves/others?
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the higher standard of clear and convincing evidence must be met
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What is the M'Naghten Rule?
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a person may be found insane if at the time of the act the party was laboring under such a defect of reason he could not know the nature and quality of the act he was doing; or if he did know it he did not know it was wrong
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are insanity and incompetency legal standards or psychiatric standards?
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legal standards
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What are some sources of psychiatric liability (5)?
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1) sex w/ pt
2) wrongful discharge 3) suicide 4) medication 5) failure to warn of imminent threat posed by a patient |
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what are quasi-judicial trials or hearings held for?
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violations of administrative law
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because of its seriousness, a criminal case must be proven on what degree of evidence?
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beyond a reasonable doubt (as opposed to preponderance of evidence in civil cases)
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what four crimes are doctors often charged with?
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-reckless behavior
-medicare fraud -insurance fraud -narcotics abuse |
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where is PAS legal?
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oregon
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what is equity law?
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it is law administered according to the standards of fairness rather than according to the strict rule of the law. allows a judge to exercise somewhat arbitrary power to prevent an injustice that would occur if the letter or the law were strictly followed
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what act have MCOs been using to shield themselves from malpractice actions?
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ERISA - the employee retirement and income security act, a federal act that provides certain employee benefit plans with protection from suits under state law.
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What was decided in Washington v. Glucksburg?
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the constitution does not bar the state of washington from passing a law banning PAS. This decision does not prevent another state from passing a law permitting PAS
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What was the ruling in Hendricks v. Kansas?
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held that the constitution does not prevent the state of missouri from adopting a sexual predator commitment law which provides for the civil commitment of sexual predators after they have completed their sentence under a criminal conviction
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What is the HFCA?
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Teh health care financing administration - the former name for the federal agency that oversees the medicare system, CMS (centers for medicare and medicaid administration)
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What is the JCAHO?
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Joint Commission on the Accreditation of Healthcare Organizations - a non-governmental organization that provides accreditation for health care organizations that meet its published standards by permitting voluntary one-site inspections.
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What is a jurisdiction
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the authority for a court to hear a case and render a final decision on it
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Is the right to privacy dependent on the existence of a physician/patient relationship?
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No, thought the obligation to guard patient confidences is
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