CHAPTER 44 Legal and Regulatory Issues
I. GENERAL OVERVIEW
A. Sources of Law
C. Specific Laws
1) Intentional tort: requires that the person committing the tort have the intent to commit the act (e.g., assault, battery, or false imprisonment)
a) Assault: intention to cause harm to an individual with the ability to immediately carry through the threat
2) Nonintentional tort: civil injury caused without intent by the defendant (e.g., professional negligence)
a) Negligence lawsuit: will fail in the absence of any of the following four elements, which must be pleaded and proved by the individual initiating the lawsuit (plaintiff-patient):
(1) Duty: presence of a relationship between the plaintiff-patient and the defendant-health care professional
(a) Wilmington General Hospital v. Manlove, 194 A.2d 135 (Del. 1961)1: court decision held that if a hospital has an ED, it has the duty to provide emergency care; internal hospital policies cannot be used to negate the duty owed to the community at large
(b) The Hospital Survey and Construction Act, also known as the “Hill-Burton Act,” Title 42, Part 124, (1946)2: federal law required hospitals receiving federal funds under this act to provide care to patients regardless of ability to pay
(c) Lunsford v. the Board of Nurse Examiners, 648 SW 2d 391 (Tex. App. 3 Dist., 1983)3: court held that nurses have a duty to patients just as physicians owe a duty, and that duty stems from the privilege granted by the state in nurse licensure
(2) Breach of duty (standard): plaintiff-patient states care rendered was below accepted standards of care (the defendant departed from the standards of care), thereby causing injury
(a) Standard of care: degree of care that a reasonable, prudent, professional would exercise in the same or similar circumstances
(3) Proximate cause: claim that the injury would not have occurred but for the departure; a direct causal relationship must exist between the breach of duty and the injury
(4) Injury: plaintiff-patient must be able to demonstrate that a physical, psychological, or financial injury (damages) occurred because of the negligence of the defendant; damages may include compensation for pain and suffering, medical expenses, and lost wages; if state law allows, plaintiff-patient (or estate’s administrator/executor) may seek punitive damages, meant to punish or deter wrongful conduct
D. Other Legal Concepts
a. Employers have vicarious liability for negligent actions of their employees acting within the scope of their employment
1) Hospital employer is legally liable for the acts of its staff members while they are performing work duties
2. Duty to follow physician’s orders
a. Enacted to encourage rendering of assistance in emergency situations outside the hospital setting without fear of liability
c. May not apply if health care professional was grossly negligent or received compensation for services provided
a. An employer may be required to pay settlement for an employee found liable for professional negligence
b. If so, the employer may require the employee to repay the employer for money lost (indemnification)
a. Available to cover costs associated with litigation of professional negligence cases and expenses of settlement or verdict
