Chapter 5: Fundamentals of Law for Health Informatics and Information Management

Act of God
Means “Any irresistible disaster, such as earthquakes, unprecedented floods or like, that is not human related
May not be a reasonably foreseeable event
If the proper care and diligence on the part of a tortfeasor would have avoided the act, the act is not excusable
In an action where the defendant was held not liable for a car accident caused by fog, the court stated if an act of God is so unusual as to do damage by its own power, w/out reference to and independently of any negligence by defendant, there is no liability
Affidavit of merit
As a measure to deter excessive or frivolous litigation, some jurisdictions require this to accompany a complaint
The purpose of filing this is to establish the sufficiency of the complaint and to serve as a pretrial screening device
The affidavit of merit must include all of the following:
1. a statement that the affiant has reviewed all medical records reasonably available to the plaintiff concerning the allegations in the complaint
2. A statement that the affiant is familiar with the applicable standard of care
3. The opinion of the affiant that the standard of care was breached by one or more of the defendants to the action and that the breach caused injury to the plaintiff
Affirmative defense
Defense to negligence claims
Those for which the defendant bears the burden of proving he or she is entitled to rely on them
1. Contributory negligence
2. Comparative negligence
An intentional tort that involves conduct that causes apprehension of a harmful or offensive contact instead of actual contact
No actual contact is necessary for an assault
The interest of the plaintiff is protection against a mental disturbance of his or her personal integrity
An act that is likely to bring about apprehension or fear of battery may constitute an assault
What constitutes an assault?
Shaking a fist under another’s nose, taking aim with a weapon, holding a weapon in a threatening position
What is the harm in an assault?
The plaintiff’s mental apprehension that he or she may be the victim of a battery or other impermissible contact
The mere fact that the plaintiff is subjected to apprehension is enough to give rise to a cause of action for assault (even without contact)
Words and assault
Words alone may allow a plaintiff to recover for an assault
Hostile words that arouse apprehension in the plaintiff, such as threatening words or behaviors, may lead to the plaintiff’s apprehension and a right to recover for assault
Assumption of risk
An affirmative defense that bars a plaintiff from recovering on his/her negligence claim if the defendant proves that the plaintiff:
1. Had actual knowledge of a danger
2. Understood and appreciated the risks associated with the danger
3. Voluntarily exposed himself or herself to the risks
In the medical context (for ex: in defending a medical malpractice claim), a defendant would be more likely to rely on what negligence principles?
Contributory or comparative negligence principles (such as a plaintiff’s failure to follow up as ordered or failure to follow other important medical advice) than on assumption of risk bc assumption of risk defense usually contemplates a voluntary exposure by way of an affirmative act
True voluntariness is generally lacking in a patient who seeks medical care, as opposed to an individual who chooses an activity such as skiing or snowboarding (which are voluntary)
Intentional and nonconsensual contact with the plaintiff
Whether touching rises to the level of bodily harm depends on the circumstances and whether the touching occurred in a context that society views as acceptable
The time, place, and circumstances of an act determine whether the touching is impermissible
A person is not expected to tolerate actions by a stranger that would be allowed by an intimate friend
The test is what would be offensive to an ordinary person who is reasonable about the type of personal contact generally encountered in society
Intent required is only that the defendant intended to make contact
For battery to occur, the defendant must have:
performed some positive or affirmative act that resulted in an impermissible contact with the plaintiff
The defendant may be liable not only for contact that physically harms the plaintiff but also for relatively minor contacts that are offensive or insulting
Spitting in the plaintiff’s face or forcibly removing his or her hat may constitute battery
The law does not require the defendant intended a certain result, but merely that they intended a ‘touching’
A special relationship recognized by the law that permits certain conduct that would be prohibited under other circumstances
For example: a parent may be privileged to touch or restrain a child in a manner that a stranger would not
In some circumstances, the intent to commit battery on one person may be transferred to a third person
If the defendant intended to commit a battery on one person but caused an unintended harmful contact to a different person, the latter may be entitled to recover damages as if the defendant intended to affect him or her (in this case, the intent is transferred to the victim)
Battery in medical context
Performing a surgery without the patient’s consent (and presuming no exception allowing it, such as a medical emergency) could give rise to a cause of action for battery
Breach of confidentiality
Breach of confidentiality and invasion of privacy have obvious similarities but are grounded in different principles
Defenses of breach of confidentiality claims include
1. The patient’s authorization or consent to the disclosure
2. Privilege, where legitimate interests are served by the disclosure
3. Waiver, where the patient made public or otherwise placed his or her medical condition at issue
Invasion of privacy is grounded in principles of protecting privacy, whereas breach of confidentiality focuses on
The special relationship – fiduciary in nature – between patients and health care providers
Whether particular conduct constitutes a breach of the duty to preserve confidential patient information depends on the specific facts of the disclosure, for instance:
In estate of Berhinger v. Medial center at Princeton (1991), a court held a hospital libel for failing to protect confidential information about one of its surgeons who was a patient at the hospital and happened to be HIV positive
Medical records could easily be accessed and no policy had existed to limit access or prevent improper disclosures
To establish a claim for breach of confidentiality, a plaintiff must establish the following elements:
1. Existence of a duty to not disclose health information
2. A breach of the duty
3. Damages
Charitable immunity
Hospitals being historically shielded from liability under this doctrine due to their role as a charitable organization
This protection was gradually eliminated
Landmark case credited w/ significantly eroding this protection: Darling v. Charleston Community Memorial Hospital (1965)
Civil law
Civil causes of action encountered in hc settings are generally based either on
Negligence or on intentional torts (including causes of action such as battery, assault, infliction of emotional distress, and false imprisonment)
Collateral source payments
Are those payments a plaintiff in a tort case receives from a source other than the defendant
Under the general collateral source rule, defendants were prohibited from presenting evidence that a plaintiff received compensation for his or her injuries from any other source
One example of a collateral source payment issue in the medical malpractice context is where:
An injured plaintiff might recover twice if he or she received $100,000 in medical care for his or her injury under Medicare benefits and then attempted to recover the costs of medical care against the person who caused the injury
The intended effect of the new collateral source laws is:
To diminish the damages awarded by juries who are now aware of other financial resources that the plaintiff has
Common law
US concept of torts originated in the common law of England, depended on whether the king was willing to issue a writ, a formal written order issued by one with admin or judicial jurisdiction over the case
Comparative negligence
An affirmative defense
Under this doctrine, a defendant demonstrates that the plaintiff’s conduct contributed in part to the injury the plaintiff suffered
Unlike the doctrine of contributory negligence (where the negligent plaintiff is completely barred from recovering damages), this doctrine causes the plaintiff’s recovery to be reduced by some amount based on his or her % of negligence
If the defendant is liable for 99% of the injury and the plaintiff is liable for 1%, the defendant must pay 99% of the damage award
If defendant is less than 50% negligent, they pay nothing
Comparative negligence can be divided into two types:
1. Pure (permits a plaintiff who is 90% to blame for an accident to recover 10% of losses)
2. Partial/Modified (Allows a plaintiff to recover only if the plaintiff’s negligence is “not greater than” or “not as great as” the defendant’s negligence), for example, the plaintiff must be 50% or less at fault
Compensatory damages
Divided into general (noneconomic) and special (economic) damages
Contingency fee
A lawyer’s fee paid on the basis of the percentage of the money awarded to the client
Fee commonly one-third of the total recovery
As opposed to charging the client an hourly fee, this fee structure allows plaintiffs who otherwise could not afford a lawyer to seek redress in court w/out any financial investment
This fee system is unique to the US legal system and has been heavily criticized since it allows lawyers to take riskier cases and encourages them to make excessive demands and seek cases that may be settled quickly with minimal time invested
Many states have taken reform measures to curb the abuse of contingency fee arrangements by enacting statutes to limit the contingent fees in medical liability cases to certain percentages or provide that a court must review or approve the amount of such fees
Contract law
Is the body of civil law relating to agreements between parties, most often in the context of business or commercial relationships
Whereas the law of tort focuses on negligence or intentional wrongs committed by one party against another, the law of contract focuses on agreements between parties and the enforcement of such agreements
Critical difference between tort and contract law is that:
By definition, negligence does not factor into the analysis and resolution of contract disputes
Contributory negligence
An affirmative defense
Bars a plaintiff from recovering damages from the defendant if the defendant is able to prove that the plaintiff’s conduct contributed in part to the injury that the plaintiff suffered
Long debated because if the plaintiff is even 1% to blame for the injury, the defendant would be relieved from having to pay any damages
Most states do not recognize this doctrine as an affirmative defense
Corporate negligence
(Primary liability)
A hospital may be held primarily liable (liable in its own right) under this doctrine
The hospital holds itself out as a provider of hc services and, therefore also holds itself out as entity subject to a lawsuit in the event of negligence
Under the corporate negligence doctrine, a hospital owes its patients the following duties:
1. Duty to use reasonable care to maintain safe and adequate facilities and equipment
2. The duty to select and retain competent medical professionals
3. The duty to oversee all persons who practice medicine within the hospital
4. The duty to formulate, adopt, and enforce rules and policies that ensure quality care for all patients
A plaintiff seeking to establish liability under corporate negligence doctrine must prove the following:
1. The hospital deviated from standard of care
2. Hospital had actual or constructive notice of the defects or procedures that created the harm
3. Hospital’s act or omission was a substantial factor in bringing about the harm
Criminal law
The key inquiry in a criminal violation is whether it was committed knowingly, which means either purposefully committing the act or acting in willful disregard of the existence of a statutory provision or scheme
Criminal penalties for privacy violations include:
1. A fine of not more than $50,000, imprisonment for not more than one year, or both
2. If the violation is committed under false pretense, the fine is not more than $100,000 imprisonment is for not more than 5 years, or both
3. If the violation is committed with the intent to sell, transfer, or use personal health info for commercial advantage, personal gain, or malicious harm, the fine is not more than $250,000, imprisonment is for not more than 10 years or both
Criminal negligence
Reckless disregard for another’s safety or stated in another way, willful indifference to harm that could result from an act
IN what is considered to be the first HIPAA privacy criminal prosecution:
US v Gibson, a covered entity employee was charged with illegal disclosure of a patien’ts personal health info to fraudulently obtain and use credit cards in the patient’s name
In the form of monetary compensation are awarded by a court to an individual in a civil action who has been injured by another party. Intended for physical or monetary injuries
Principal types can be divided into two broad categories: 1. Compensatory 2. Punitive
A false communication about a person to someone else that harms the first person’s reputation
The false communication may be either oral or written
If oral, it is called Slander, if written, is called libel
To prove a cause of action for defamation, the plaintiff must show the following:
1. Defendant made a false and defamatory statement about the plaintiff
2. The statement was not a privileged publication (that is, made appropriately and in good faith to persons with a legitimate reason to know) and was made to a third person
3. The conduct was an act of negligence or contained a higher degree of intent
4. Actual or presumed damages resulted
Emotional distress
Manifestations such as sleeplessness, anxiety, irritability, or the emotional inability to perform activities or go places that the plaintiff was capable of prior to the event for which a lawsuit has been filed
To recover under causes of action of the negligent or intentional infliction of distress, the injured person must establish that:
In making a non privileged disclosure, the defendant negligently, recklessly, or intentionally engaged in “extreme and outrageous conduct” that caused severe emotional distress in which the court granted a motion to strike a count of complaint alleging intentional infliction of emotional distress due to failure to establish outrageous conduct in connection with claimed improper disclosure of medical information
Negligent infliction of emotional distress is usually considered a subcategory of negligence, which is recognized in some jurisdictions. Under Restatement of Law, Torts, a person who unintentionally causes emotional distress is liable causing injury to the other if he:
1. should have realized that his conduct involved an unreasonable risk of causing the distress (and)
2. From the facts known, should have realized that the distress might result in illness or bodily harm
Type of tort: Negligence for improper disclosure. Elements of a cause of action for negligence are:
1. The existence of a duty (protecting against unintentional invasion)
2. Breach of duty (conduct falling below a standard of care for protecting against unreasonable risk of harm)
3. Harm or injury
4. Breach of a duty must be a legal and proximate cause of the harm or injury
Potential defenses to intentional torts, depending on the specific tort alleged, are
Consent by the plaintiff and necessity, including self-defense or defense of others
To prove emotional distress, the plaintiff must
demonstrate that he or she has suffered from one or more manifestations that have negatively impacted their life
False imprisonment
Intentional confinement of a person against that person’s will
Elements of the intentional tort of false imprisonment
1. Confinement of a person against his or her will
2. Absence of a reasonable means of escape
3. No legal authority on the part of the person acting to confine another
A cause of action for false imprisonment may occur when
An individual is hospitalized against his or her will, although legal exceptions exist regarding individuals in need of mental health treatment who post harm to themselves or others, and individuals with certain contagious diseases
Fiduciary duty
An obligation to act in the best interests of another party and is based on a special relationship of trust, confidence, and responsibility in certain obligations
A physician has a fiduciary duty to the patient to not disclose the patient’s health information
A patient may recover damages for violation of the fiduciary duty
General damages
A compensatory damage (economic)
Damages that naturally and necessarily flow from a tort and directly result from the tort
Ex: Pain and suffering are considered part of general damages
Gross negligence
A degree of negligence
Very great or excessive negligence that implies an extreme departure from the ordinary standard of care and shows a reckless disregard for the rights of others
Health Insurance Portability and Accountability Act of 1996 (HIPAA)
Imposes liability for the improper use or disclosure of health information
Civil and criminal liability may result from the improper use or disclosure of health information and for violating other HIPAA provisions
As revised under the Health Information Technology for Economic and Clinical Health Act (HITECH), the minimum civil monetary penalty for a HIPAA violation is
$100 per violation, with a $1.5 million fine per calendar year for identical violations
Damages for tort claims discussed in HIPAA are generally not controlled by statute. Instead, they
Are litigated under common law principles before a jury
Infliction of emotional distress
A common law tort for intentional conduct that results in extreme emotional distress
Elements of intentional infliction of emotional distress
1. An intentional or reckless act (the defendant does not have to intend that emotional distress will occur; acting with reckless disregard is sufficient to meet this element)
2. Extreme and outrageous conduct that is beyond the standards of civilized decency or is utterly intolerable in a civilized society
3. The act of the defendant must have actually caused the emotional distress
4. The emotional distress suffered by the plaintiff must be “severe”
A cause of action for the intentional infliction of emotional distress occur when
An individual engages in extreme and outrageous conduct that is so egregious as to cause another person severe emotional injury
Example: defamation with serious emotional and psychological consequences
Immunity from liability
Is a defense to tort liability that is extended to a particular group of persons or entities
Two important aspects of an immunity defense: 1. The defense of immunity does not deny the existence of the alleged tort but merely denies any resulting liability
2. Immunity extends to only a limited group of people or entities. Immunity occurs bc of the status or position of the defendant, not bc of the facts of the case. The decision to extend immunity to a particular group of persons or entities is based on public policy (therefore, others outside the group may be held liable for a tort)
Intentional torts
Involve a deliberate or intentional act, and it is distinguished from unintentional acts or negligence, in which the defendant does not necessarily intend to cause harm but harm is a foreseeable consequence of the defendant’s conduct
Examples of intentional torts
Battery, assault, false imprisonment, and intentional infliction of emotional distress
A medical abandonment claim may also be brought as an intentional tort for the alleged wrongful termination of a provider-patient relationship, but depending on the circumstances, it may be negligence or breach of contract
Invasion of privacy
A person’s right to privacy is “the right to be left alone” – the right to be free from unwarranted publicity and exposure to public view, as well as the right to live one’s life w/out having one’s name, picture, or private affairs made public against one’s will”
Under Restatement of the Law, Torts 1965, a person who invades the right of privacy of another is subject to
Liability for the resulting harm to the interests of the other
The right to privacy also includes the right to control personal information.
To establish a claim for Invasion of privacy, a plaintiff must establish the following elements:
1. A duty to not invade the privacy of or disclose confidential medical information of a patient
2. Breach of duty
3. Damages from the breach
In the healthcare setting, invasion of privacy can include:
1. disclosure of health info
2. The taking of photographs for medical, research, proprietary, or other purposes
3. Presence of witnesses (for ex: students) to a medical treatment or procedure
Defenses to the invasion of privacy claims include:
1. The patient’s authorization or consent to the disclosure or other action that was taken
2. Privilege, where legitimate interests are served by the disclosure or other action
3. Waiver, where the patient made public or otherwise placed his or her medical condition at issue
Joint and several liability
•Allows each defendant in a legal action to be held responsible for the entire amount of damages that a plaintiff is awarded, regardless of the defendant’s degree of fault
The rule of joint and several liability has sometimes been referred to as the “deep pocket” rule bc of the perception that plaintiffs are inclined to sue multiple defendants in order to find the most financially lucrative target
•Under this theory, financially lucrative Defendant A may be required to pay 100% of the damages, even though it is only 60% responsible, bc the non-financially lucrative Defendant B is unable to pay its 40% share
•Tort reform measures replace the rule of joint and several liability with one of proportion of the injury it caused
Judge-made law
Common law
Refers to the legal authority an entity possesses to make a legal decision
A limited number of forms of writs were prescribed
Unless the plaintiff could identify a writ that applied to his or her situation, no remedy was available
In general, two writs were available for tortious conduct:
trespass and trespass on the case
Trespass on the case evolved from
Trespass and was directed toward remedying conduct that was not necessarily intentional or directed toward a plaintiff’s interest
An action for trespass generally involved:
A breach of peace
A defendant who committed a trespass was imprisoned or fined
The civil remedy was in the form of direct and intentional interference with a person’s protected interest
The protected interest could be personal (such as bodily harm) or related to a property interest (such as harm to a person’s possessions)
A legal obligation or responsibility (amount owed) that one party in the lawsuit may have to another party in the lawsuit
A type of negligence
Similar to nonfeasance and misfeasance but characterized by the additional element of intentional conduct in that such conduct is intended to cause damage
A form of negligence
Misconduct of a professional person, including dr., nurse, attorney, or accountant
Medical malpractice
Alleged wrongful act committed by a healthcare provider against a patient
Medical malpractice insurance
Physician’s and providers retain to protect themselves from claims of medical negligence or other tortious injury arising out of care provided to patients
Full blown medical liability crisis, the AMA contends that these crisis states have common features:
Patients continue to lose access to care and ob’s
Rural family dr’s no longer deliver babies
High-risk specialist no longer provide trauma care or perform complicated surgical procedures
A type of negligence
Improper performance of an act that a person might lawfully do, or active misconduct that causes injury to another
Exists if the defendant is responsible for making the plaintiff’s position worse; that is, the defendant has created a risk
Conversely, nonfeasance is found if the defendant has failed to aid the plaintiff through beneficial intervention
Second type of tort, unintentional
Basis for most medial malpractice lawsuits
Involves failure to act in a way that a reasonably prudent person would act under the same circumstances, thus causing harm or injury to another
Negligence can be categorized other ways, for example, negligent torts, can be categorized as:
Restatement of the Law (Second), Torts 1965 defines negligent conduct as
Conduct which falls below the standard established for the protection of others against unreasonable risk of harm
The law recognizes that when one person commits negligence and injures another, the injured person is entitled to compensation for his or her injuries
As contrasted with intentional torts, negligence results from
Unintentional conduct
A negligent tort may result from a person acting or
Failing to act as an ordinarily careful and prudent person would act under similar circumstances
Negligence may occur where an individual has evaluated alternatives and their consequences and has exercised his or her best possible judgment, therefore a person can be:
Found negligent when they fail to protect against risk they know could happen
Negligence can occur where it is known, or should have been known, that a particular behavior would place others in unreasonable danger
No-fault insurance
Describes any type of insurance contract under which insureds are indemnified for losses by their own insurance company, regardless of fault in the incident generating losses
Very similar to first-party coverage
The term “no fault” is most commonly used in the context of state/provincial auto insurance laws in the US, Canada and Australia in which a policyholder (and passengers) are
Not only reimbursed by the policyholder’s own insurance w/out proof of fault but also restricted in the right to seek recovery through the civil-justice system for losses caused by other parties
In states that have adopted no-fault systems, minor accident and injury claims are generally resolved without litigation. However, when there are catastrophic injuries or damages,
No-fault states still permit an individual to bring claims where basic no-fault principles would not adequately protect or compensate the injured party
Noneconomic damages
Were developed as a way to compensate an injured plaintiff for losses that do not have a cash value, such as pain and suffering or emotional distress
In contrast, punitive damages serve to punish and deter defendants who have acted maliciously
Awarding non-economic and punitive damages tends to be an emotionally charged and troubling process for juries, and the amounts given to injured plaintiffs often far exceed the actual damage award
23 states have enacted non-economic damage legislative reform as of 2004, with statutory limitations ranging from $250k to $1million
In 2004, 19 states have enacted punitive damage reform legislation requiring stricter standard of proof and/or a higher degree of fault before punitive damages may be awarded
A type of negligence
Failure to perform an act (including protecting someone else from harm) that a person is under a duty to do and that a person of ordinary prudence would have done under the same or similar cirucmstances
Negligence can be categorized by the degree of wrongdoing
Ordinary negligence
Gross negligence
Ordinary negligence
A degree of negligence
Failure to exercise ordinary care “the failure to exercise such care as..mankind ordinarily exercises under the same or similar circumstances”
Elements of negligence: To recover damages caused by negligence, the plaintiff must demonstrate that all four of the following elements of negligence are present:
1. Defendant owed the plaintiff a duty of care
2. Defendant breached the duty of care
3. Plaintiff suffered an injury as a consequence of the defendant’s breach
4. There is a causal connection between the defendant’s breach and the plaintiff’s injury
Elements of negligence: 1. Defendant owed the plaintiff a duty of care
In a medical malpractice action, the plaintiff must demonstrate that a physician-patient, nurse-patient, or other healthcare provider-patient relationship existed at the time of the alleged wrongful act
Requires that a person conform to some identified standard of care
Elements of negligence: 2. Defendant breached the duty of care
The plaintiff must demonstrate that the defendant failed to exercise reasonable care under the given circumstances
Denotes a deviation from or breach of an applicable standard of care
Elements of negligence: 3. Plaintiff suffered an injury as a consequence of the defendant’s breach
Injury includes physical and mental suffering (and may include invasion of the plaintiff’s rights and privacy), monetary damages, and other damages
Must be established to show that a person was harmed or injured, invasion of a legally protected interest
Elements of negligence: 4. There is a causal connection between the defendant’s breach and the plaintiff’s injury
There are two types of causation in the law: 1. Cause-in-fact (actual), and proximate (legal) cause
Cause-in-fact is determined by the “but-for” test: But for the action, the result would not have happened
Causation must be established that a breach of duty caused the injury
Example of the “but-for” test in causation law (Cause-in-fact)
But for running the red light, the collision would not have occurred
Example of proximate (legal) cause:
An event that is sufficiently related to a legally recognizable injury so as to be held as the cause of that injury
It is an act that results in injury through a natural, direct, uninterrupted consequence and without which the injury would not have occurred
Entails an analysis of foreseeability (was it foreseeable that the defendant’s actions would result in the injury?)
No lawsuit can succeed w/out proving the element of proximate cause
1. A cause that is legally sufficient to result in liability, an act or omission that is considered in law to result in a consequence to that liability can be imposed on the actor
2. A cause that directly produces an event and w/out which the event would not have occurred
Punitive damages
Intended to punish and deter certain types of conduct, including tortious conduct
May not be awarded w/out a simultaneous award of compensatory damages
Res ipsa loquitur
Exception to the rule that a plaintiff has the burden of proof and must prove all elements of his or her case
A doctrine meaning the thing speaks for itself, where the facts or circumstances accompanying an injury may raise a presumption, or at least permit an inference, of negligence on the part of the defendant charged with negligence
The defendant thus has the burden of proof to show that they were not negligent
The doctrine of Res Ipsa Loquitur derives from
The understanding that some events ordinarily do not occur in the absence of negligence
The three elements of the Res ipsa loquitur doctrine
1. Injury of a kind that ordinarily does not occur in the absence of someone’s negligence
2. Injury caused by an agency or instrumentality w/in the exclusive control of the defendant
3. Injury not due to any voluntary action or contribution on the part of the plaintiff
Example of the Res ipsa loquitur doctrine
Hake v. George Wiedemann Brewing Co., where a beer keg exclusively handled and controlled by the defendant rolled off an exterior second-story stairway platform, striking and injuring the plaintiff, who was walking underneath
The doctrine may be applied in suits against hospitals to recover for injuries sustained by patient’s while receiving treatment or care in the hospital
The value of a res ipsa loquitur jury instruction to a plaintiff is that it
Permits the jury to infer negligence on an issue where the plaintiff may not have actual, discrete evidence or proof of negligence
Thus, mere control of an instrumentality permits an inference of negligence even though actual proof of negligence is lacking
W/out the instruction, in certain circumstances it might be exceedingly difficult or impossible for a plaintiff to prove negligence
Rescue doctrine
Sometimes adopted as a bar to the affirmative defenses of contributory negligence and assumption of risk
Neither contributory negligence nor assumption of risk is charged to him who comes to the rescue of others in peril w/out their fault, unless the act of the rescuer is manifestly rash and reckless to a man of ordinary prudence acting in emergency
Unless the rescuer’s own conduct in attempting the rescue is wanton, then the rescuer may recover from the negligent defendant
Ex: When a court held that the plaintiff could sue the manufacturer of a smoke detector on the basis of harm the plaintiff suffered while attempting to rescue a family member from a burning house
The rescue doctrine states that
If a tortfeasor creates a circumstance that places a victim in danger, the tortfeasor is liable for the harm caused not only to the victim but also to any person injured in an effort to rescue the victim
Respondeat superior “let the master answer”
Secondary liability or vicarious liability
Generally, a hospital is liable to patients for the torts of its employees under this doctrine provided they were acting w/in the scope of their employment or w/in the hospital’s direction
The legal status between physicians and the hospitals where they practice must be considered
Most commonly, dr’s are granted privileges to practice in a hospital (these privileges make dr’s independent contractors of the hospital rather than employees
A hospital is not held liable for the negligence of a physician w/ the status of independent contractor when the hospital:
1. Does not control the method or manner of the services the dr provides and
2. Provides meaningful notice of an independent contractor status to the patient, acknowledged at time of admission
A hospital is liable for torts of independent contractors in the following situations:
1. When the hospital contracts to provide medical services to a patient and has those services provided by an independent contractor
2. When the hospital had reason to know that negligence would occur
3. When the hospital holds out to the patient or the general public that the physicians associated w/it are its employees, even if they are not. In this situation, liability would be premised on the legal doctrines of (a) ostensible agency, (b) apparent authority, or (c) agency by esotopped
Special damages
A compensatory damage (economic)
Arrive out of the special character, condition, or circumstances of the event or person injured
Medical treatment costs and lost wages are the main types of special damages ordinarily at issue in a personal injury tort claim
Proof of special damages (such as economic losses) may be
Required to recover damages in a defamation case
Under certain circumstances, a plaintiff is not required to show proof of actual harm to his or her reputation in special damages, including when the defendant allegedly performs one of the following acts:
1. Accuses the plaintiff of a crime
2. Accuses the plaintiff of carrying a loathsome disease
3. Uses words that affect the plaintiff’s professional or business activities, or calls a woman unchaste
There are two principal defenses available to defendants accused of defamation:
1. A person accused of defamation is not liable if the statement made is true (that is truth is a defense)
2. A defendant may use the defense of privilege. If the communication was made in good faith at an appropriate time and in an appropriate manner to persons who have a legitimate reason for receiving the communication (such as judicial proceedings or public safety), the defendant is not liable
The defense of privilege is grounded in:
The law’s recognition that certain privileged communications take priority over statements that may allegedly be defamatory
In addition to the two principal defenses, authorization for the disclosure of info and lack of publication to a third party are also viable defenses
Standard of care
Is what an individual is expected to do or not do in a particular situation
Are established by statute or ordinanace, judical decision, professional associations or practice
Negligence is careless conduct outside the generally accepted standard of care
The standard of care in the healthcare professions is
The exercise of reasonable care by healthcare professionals with similar training and experience in the same or similar communities
Some courts define standards of care on a national level as opposed to a community level. Example: Strickland v. Pinder (2006):
The court stated that for an expert’s testimony to establish a national standard of care, the testimony should be supported by a published standard, certification process, current literature, or conference or discussion with other knowledgeable professionals
W/out such support, the court said that expert’s testimony was only personal opinion, not sufficient to prove the applicable standard of care
Standard of care on a national level vs. small community
The standard of care on a national level would generally be stricter than a community standard in a small community. As tech has enabled hc providers in remote locations to access medical resources for patients, the community standard has become disfavored and has been replaced by prevailing national standards
Statute of limitations
Statutory enactment that places time limits on certain claims
Purpose of this time frame is:
1. To allow an injured person a reasonable amount of time in which to bring an action for recovery
2. To allow claims to be resolved while evidence is reasonably available
Three steps involved in application of a statute of limitations:
1. One must identify the appropriate statutory period of limitations
2. One must determine when that particular statutory period commenced or began to run
3. One must determine whether some condition or event suspended or postponed the operation of the statute of limitations
Unlike the defense of immunity, a statute of limitations defense often varies depending on the type of tort claim asserted. For instance:
Intentional tort claims are usually subject to a different statutory limitations period than negligence claims
Also, although medical malpractice may be viewed as a form of negligence, many states have adopted special limitations periods for medical malpractice claims
When a statute creates a cause of action, such as with claims for wrongful death, that particular statue will often contain its own limitations period
If a statute of limitations does not specifically identify when the period begins to run and the claim involves a single act or omission causing injury, the general rule is that:
The period begins to run when the act or omission causing injury is complete
Thus, if one commits an assault on another, the statutory period of limitations for an intentional tort begins to run at the time of the assault
On the other hand, if an injury accrues over time, such as the effects of a toxic chemical, the statute will not begin to run until the last exposure
Exceptions to statutes of limitations. A statutory period of limitations must be tolled (postponed, suspended, or extended) for many reason; primary reasons include:
1. Inability to discover the injury
2. Death of the injured individual
3. Disability of the injured individual
4. Wrongdoing by the individual or entity causing the injury
Statute of limitations: Disability of the injured individual
If injured person is under a disability (such as minors and mentally impaired individuals), the statute of limitations is usually tolled until the disability has been removed
Statute of limitations: Wrongdoing
A statute of limitations may be tolled due to the actions of the tortfeasor-defendant. If the tortfeasor attempts to conceal wrongdoing, the statute of limits will be tolled
A tortfeasor may be prevented from asserting a statute of limitations defense
Presume that two ppl in a car accident, the person responsible for the accident promises to settle any and all claims. IN the meantime, the statute of limits expires. A court may prevent the wrongdoer-defendant from asserting a statute of limits defense due to the promise made to the other person
A defendant can also waive a statute of limits defense if it is not specifically asserted against the opposing party
Discovery rule provides that:
If the nature of an injury is inherently undiscoverable, a person exercising reasonable diligence will not be barred by the statute of limitations from bringing a lawsuit
An injury is inherently undiscoverable if it is unlikely to be discovered within the specified period of limitations
When a person is injured by a tort and later dies, the status of limitations will be affected. For example:
A cause of action may occur before the death of the injured person and the time for commencement of an action has not expired, but the person did not sue prior to death
In most cases, the statute of limitations will be tolled for a period of time to allow an executor or administrator to be appointed and to bring an action (This is different from a claim for wrongful death)/
Statute of repose
Many states in the course of enacting tort reform measures, retain existing statutes of limitations for malpractice cases (for example, one year in ohio) and personal injury cases but then add new provisions, subject to certain exceptions, that provide a maximum amount of time within which to discover and file a claim.
Such maximum or absolute limitations are called statutes of repose
Strict liability
Until the 19th century, an individual whose actions resulted in harm to another individual was in most cases, held responsible for the harm simply bc he or she had acted
Under this theory (liability without fault) a person is responsible for the damage and loss caused by his or her acts and omissions regardless of fault
Examples of strict liability may be found in cases where abnormally dangerous activities are carried on and in cases involving injuries from wild animals
If a person were injured by an explosion in an explosives storage facility, law would hold facility liable
The most common application of the doctrine of strict or absolute liability in tort has been in
products liability cases
To recover under the strict products liability theory, the plaintiff does not need to show that the defendant manufacturer, seller, or supplier acted negligently. To recover under the strict products liability theory, the plaintiff need only prove that the following four elements of strict liability exist
1. The plaintiff sustained damages
2. The defendant was engaged in the business of manufacturing, assembling, selling, leasing, or distributing the product in question
3. The product was supplied by the defendant in a defective condition that rendered it unreasonably dangerous
4. The defective condition proximately caused the plaintiff’s damages. A plaintiff must prove that a defective condition existed but need not prove that the defective condition occurred as a result of negligence. Thus, a plaintiff can establish a strict liability case simply by proving the existence of a defective condition w/out having to establish that the condition was caused by a negligent act
Structured settlement
In personal injury or tort settlements, parties may agree to this arrangement in which the claim is paid in installments rather than in one lump sum.
Often the defendant will purchase one or more annuities to guarantee the future payments
Theses settlements were first developed in Canada and the US and are now generally available in Australia and England
There is no set form for this settlement arrangement
In the US, it can significantly reduce taxes from the settlement and may even be tax-free
To help curb abuses by companies willing to purchases this kind of settlement for a significantly discounted lump-sum payment, many states have enacted legislation to limit the sale of these settlements
Sudden emergency doctrine
Relieves a person of liability if, w/out prior negligence on his part, that person is confronted with a sudden emergency and acts as an ordinarily prudent person would act under the circumstances
Derived from the Latin tortes or “twisted”
Tortious conduct is conduct that is crooked or twisted
A tort is a civil wrong for which the law will provide a remedy in the form of a lawsuit to recover damages
Tort law
The law of torts reflects our cultural and social views as to what is acceptable and unacceptable conduct in morality, fairness, and reasonableness
The law of torts is constantly evolving and expanding
Examples include recovery of damages for discrimination, wrongful discharge from employment, strict product liability, or the negligent infliction of emotional harm
Tort law is distinguished from criminal law, which refers to a type of law in which the government is a party to prosecuting an accused charged with violating a criminal statute or regulation (by committing either a felony or a misdemeanor)
The commission of a crime is an offense against society or the public at large
The govt, usually the state representing the people, prosecutes the defendant for violating a criminal statute
The victim is the chief witness on behalf of the state
Tort remedy varies depending on the type and nature of the tort, but in general, a tort victim seeks:
To recover money damages to compensate for the loss
In contrast to criminal law, tort law or proceeding involves
The right of an individual, corporation, or other legal entity to recover damages for a loss caused by the defendant (tortfeasor)
Law of torts can be divided into three broad subgroups:
A wrong involving the person or individual rights
A wrong involving the rights to personal property
A wrong involving the rights to property
Tort reform
Trier of fact
When a judge or jury is responsible for deciding factual issues when a statute, ordinance, or judicial decision does not exist to define the standard of care that is reasonable to which a defendant must conform
Must determine what a reasonably prudent person would have done if faced with the circumstances that faced the defendant and compares it to the defendant’s behavior
Negligence has not occurred if the defendant’s behavior meets or exceeds the reasonably prudent person standard
A reasonably prudent person is one who is
A hypothetical person that a community believes exhibits ideal behavior in a particular situation and can differ from one situation to another (Restatement of the Law 1965)
If a person is considered not-prudent in a trier of fact, negligence has occurred. The trier of fact is then called on to determine whether:
1. The defendant’s negligent conduct resulted in injury to the plaintiff
2. The injury that resulted from the failure to satisfy the reasonably prudent person standard could have been foreseen
Unavoidable accident
Affirmative defense
An occurrence that could not have been foreseen or anticipated in the exercise of ordinary care and that results w/out the fault or negligence of either the defendant or the plaintiff
In Uncapher v. Baltimore, the plaintiff sought damages against a railroad company for injuries resulting from a collision between the plaintiff’s vehicle and the train; court held that plaintiff was unable to use unavoidable accident as an affirmative defense in a suit for damages against the railroad since the plaintiff admitted negligence when he failed to look both ways before crossing the tracks
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