Negligence
Is defined as loss or
damages arising from unreasonable behavior of others. Reasonable
care must be taken to foresee and anticipate possible harm.
Generally 3 criteria must be met in order for negligence to have
taken place:
· The harm was such that it would NOT
have taken place normally without someone's negligence.
· The action responsible for the
injury was under the control of the defendant.
·
The injury did not result from any
contributing negligence or voluntary assumed risk on the part of
the injured party. Did the patient do something to cause or
contribute to the injury in question?
Malpractice
There are three types of
malpractice.
·
Criminal
·
Civil
·
Ethical
Criminal malpractice:
use of professional skills and activities in violation of
criminal laws. An example is euthanasia practiced by a
physician in violation of existing penal codes preventing these
activities on the part of both health care providers & others.
Jail sentences may be given to defendants in these actions.
Civil malpractice:
violation of "community standards of care" or "national
standards of care" resulting in an injury to a patient. The
court will frequently use "expert witnesses" to evaluate the
alleged action(s) to establish their appropriateness in light of
"common medical practice". State licensure codes establishing
"a practice act" may provide the legal basis for determining if
the activities were within the defendants "scope of practice".
Monetary awards are typically given to the patient or surviving
family.
Ethical malpractice:
the engagement in criminal activities or violations of "ethical
codes of conduct" that are established by State Licensing
Boards. These actions may result from a practitioner being
convicted of drunk driving, drug possession or sale, felony
child endangerment, spousal abuse, theft, violation of firearm
statutes, assault or any crime endangering others. Sanctions
include restrictions on practice activities (supervised
practice), limitations on patient contacts, limited loss of
practice privileges for specified time periods or permanent
revocation of a license.
Who is
‘At Risk’ for Malpractice Awards?
-
Clinicians with
less than 3 years experience
-
Clinicians with
greater than 15 years experience
-
Clinicians who
do not hold memberships in professional associations or who
do not subscribe to journals in their specialty areas.
-
Clinicians who
have poor assessment, problem solving and charting skills.
-
Clinicians who
are unaware of policies and procedures and "chain of
command".
-
Clinicians who
inappropriately prioritize their clinical responsibilities
and actions. These are individuals who are typically "task
oriented". They frequently have poor "critical thinking
skills".
What are
the events which may result in litigation? What to look out for.
-
Sudden/unexpected deterioration in the patient's condition
-
Patient
injuries (falls, medication errors, etc.)
-
Failure to
monitor patients at requisite intervals
-
Equipment
failures (usually attributed to human error)
-
Implementation
of new equipment / therapies
-
Failure to
advise physician and/or supervisor of change in patient’s
health status
-
Failure to
adequately assess clinical status
-
Failure of
staff to respond in a timely manner.
-
Failure to
respond to alarms
-
Failure to
maintain accurate, timely and complete medical records
-
Failure to
carry out treatment and evaluate results of treatment
-
Failure to
follow hospital protocols
Respondeat Superior (“Let the master answer”)
-
The therapist
is working under the orders and supervision of the doctor
-
The hospital
and the doctor are responsible for actions of the assistant
-
The therapist
has the obligation to clarify orders rather than risk harm
Scope of
Practice
· General guidelines and parameters
for the therapist to practice medicine
· Deviations can cause litigation
· Only exception is basic CPR at the
roadside under the ‘Good Samaritan’ legislation
Policy
and Procedures
-
The rules and
guidelines outlined in the large volume book(s) that outline
the proper technique for all actions of the therapists in
that department of the hospital
-
How to do a
treatment, ABG etc…
Patient
Confidentiality
-
All
information regarding the patient must be held in the
strictest confidence. This includes all personal and
medical information. Information included in the chart
must never be removed from the hospital if it can be
identified as belonging to a specific patient. Names must
be removed from patient records prior to there being copied
for personal use.
-
Caution must be
exercised when verbally discussing the care of a specific
patient while in the presence of non-medical personnel.
The information you are discussing is based upon their being
a privileged relationship between the patient and
you. Inappropriate sharing of this information may result
in allegations of Libel & Slander against health
care providers.
Exception to Confidentiality
Role
Fidelity
Autonomy
-
Two components:
professional duty and a patient right.
-
Patients have
right to get what they rightfully deserve, not be harmed and
receive fair and equitable treatment
-
It would be
wrong for the therapist to use deceit or coercion to get a
patient to decide differently
Informed
Consent
-
The patient
should be informed of any grave risks of injury that may be
incurred with the therapy
-
A duty to
disclose what a reasonable and prudent therapist may
encounter even with exercising diligent care
Veracity
Benevolent Deception
Nonmaleficence
Beneficence
-
Required to do
everything to promote a patient’s life, regardless of how
useful the life might be to that individual
-
Contrasted with
-
Believe that
doing nothing and allowing death to occur without taking
heroic measures to prevent it
Advance
Directives
·
The living will
·
The durable power of attorney
·
Hospitals are obligated to follow
the wishes of the patient
