Healthcare Policy, Law, and Ethics Discussion
“Application of Tort Law in Health Care Project Management Protocols” Please respond to the following:
*From the scenario, analyze the development of health care project management predicated on tort law. Ascertain the major ways in which tort law provides solutions to health care concerns, in light of the complexities of 21st Century health care administration roles.
Scenario Script Attached.
Analyze the development of tort law from the concept and degree of negligence to the application of the law to strict / product liability. Evaluate the success of tort law in providing solutions to 21st Century health care disputes. Rationalize your answer by using any applicable legal precedents.
***This is a discussion, NOT a paper. Need 2 strong paragraphs and references.***
Week 2 Scenario Script: Project Management – Tort Law in Health Care
Week 2 Scenario Script: Project Management – Tort Law in Health CareSlide #Scene/InteractionNarrationSlide 1Scene 1 Professor Charles enters classroom and introduces the topics for today’s lesson and begins the lecture.Prof Charles: Hello everyone….welcome back to class. Today, we are going to discuss tort law with an emphasis on negligence in healthcare settings. The basic objectives of tort law are as follows: Preservation of peace between individuals by providing a substitute for retaliation; Culpability (to find fault for wrong doing); Deterrence (to discourage the wrongdoer “tort-feasor” from committing future wrongful doing); and Compensation (to identify the persons injured). The three basic categories of tort law are: Negligent torts; Intentional torts (e.g., assault, battery, false imprisonment, invasion of privacy, infliction of mental distress; and Strict liability, which is applied when the activity regardless of fault, intentions or negligence, is so dangerous to others that public policy demands absolute responsibility on the part of the wrongdoer, for example – products liability. Let’s first discuss negligence which is a tort or personal wrong. It is the unintentional commission or omission of an act that a reasonably prudent person would or would not do under any given circumstances. What are some examples? Casey: Administering the wrong medication, performing the surgical procedure on the wrong patient, performing the wrong surgical procedure, to name a few…
Donald: I would agree, but I would add failure to order diagnostic tests, failure to assess a patient’s nutritional needs, and failure to conduct a thorough history and physical examination. Prof. Charles: Absolutely… what are some forms of negligence? Casey: I would say they are malfeasance, misfeasance, and misfeasance. Prof. Charles: Excellent Casey. What are the basic two degrees of negligence? Donald: They are ordinary negligence, the failure to do under the circumstances, what a reasonably prudent person would or would not do and gross negligence which is intentional or wanton omission of care that would be proper to provide, or the doing of that which would be improper to do. Prof. Charles: Great job, Donald! Now let’s take a closer look at the elements of negligence.Slide 2Check Your Understanding Which of the following is an element of negligence? A. Beyond a reasonable doubt B. Duty to care C. Death Correct Feedback: B. Duty to care. There must be an obligation to conform to a recognized standard of care. Incorrect Feedback: A. Beyond a reasonable doubt C. Death Slide 3Scene 2 Discussion between Prof Charles and students. Prof. Charles: A duty of care carries with it a corresponding responsibility not only to provide care, but also to provide it in an acceptable manner. The general standard of care is that which a reasonable prudent person is expected to do in a given situation. Deviation from the standard of care will constitute negligence if there are resulting damages or injuries. Some standards of care are influenced by medical ethics. Casey: Professor Charles…can you give us an example? Prof. Charles: Certainly. A decision concerning termination of resuscitation efforts is an area in which the standard of care includes an ethical component. Under these circumstances it occasionally may be appropriate for a medical expert to testify about the ethical aspects underlying the professional standard of care. In Neade v. Portes, a physician expert was allowed to base an opinion on breach of standard of care on violation of an ethical standard established by the American Medical Association. Most states hold those with special skills (e.g., physicians, nurses, dentists) to a higher standard of care that is reasonable in light of their special abilities and knowledge. Donald (interrupts): Just to be clear, are physician specialists held to a higher standard than non-specialist physicians? Prof. Charles: Yes, generally the reliance of the public on the skills of a specialist and the wealth and sources of his or her knowledge is not limited to the geographical area in which he or she practices. Rather, his or her knowledge is a specialty; a person specializes to keep abreast. Traditionally, in determining how a reasonably prudent person should perform in a given situation, the courts often rely on the sworn testimony of an expert witness as to the standard of care required in the same or similar communities. Casey: I am still not quite clear on this idea of the expert witness. Prof. Charles: Sure….Expert testimony is necessary when the jury is not trained or qualified to determine what the reasonably prudent professional’s standard of care would be under similar circumstances. Slide 4Check Your Understanding All U.S. hospitals must meet a standard of care which is _______ as follows: A. Nationwide B. Local Correct Feedback: A. Nationwide is correct. There are no degrees of care in fixing responsibility for negligence, but the standard is always that care which a prudent person should used under like circumstances. Incorrect Feedback: B. The movement in the courts is away from the standard of care practiced locally to reliance on applying an industry or national standard. The standard is based on the practice of competent members of his or her profession across the nation. Slide 5Check Your Understanding Foreseeability is the reasonable anticipation that harm or injury is likely to result from a commission or omission of an act. The test for foreseeability is whether one of__________: A. Intuition B. Belief C. Ordinary prudence and intelligence D. Remote possibility Correct Feedback: C. There is no expectation that a person can guard against events that cannot be reasonably be foreseen or that are so unlikely to occur that they would be disregarded. Incorrect Feedback: A. Incorrect. Please try again. Foreseeability is based on factual considerations and reasonableness, not gut feelings. B. Incorrect. Please try again. Remember, it is based on reasonable prudent foresight, not a belief system. D. Incorrect. Please try again. Remember, it involves that which is probable and likely to happen, not that which is only remotely possible. Slide 6Scene 3 Discussion of Strict/Products LiabilityProf. Charles: Now let’s discuss strict/ products liability. Can anyone give a definition of the doctrine of strict/product liability? Casey: I think I can. Strict/product liability is a legal doctrine that makes some persons or entity responsible for damages caused by their actions or products, regardless of “fault”. Prof. Charles: Very good, Casey! Donald: Prof. Charles…Say a demolition company destroys a building in the city and practices safety and diligence and some citizens are injured. Is the blasting company liable? Prof. Charles: Donald, that is a great question. It could be liable for injuries suffered. Strict liability also applies to cases involving disposable medical supplies, equipment, and drugs. Casey: So is it safe to say products liability is the accountability of a manufacturer, seller, or medical supply company for injuries sustained because of a medical defect in a product? Prof. Charles: Yes, Casey….I think that is a pretty good distinction. Casey: I think that the discussion on products liability and has really clarified some questions for me. Prof. Charles: Well, that is a great lead-in to the next topic, which is negligence, breach of warranty, and strict liability.Slide 7Scene 4 Discussion on express warranties and implied warranties.Prof. Charles: The doctrine of strict/products liability has been promulgated into a model law for states to voluntarily enact called the Model of Uniform Products Liability Act. The three types of product defects, and defects in marketing (for example – providing improper instructions and making exaggerated claims about a product’s use). If a hospital negligently uses a product and injures a patient, the manufacturer is usually not liable for injuries unless the instructions for use are incorrect. Because manufacturers are liable for injuries that result from unsafe product design, they generally provide detailed safety instructions to the users of their products. What do you think is a breach of warranty? Casey: I would say a warranty is a manufacturer’s guarantee concerning goods or services provided by a seller or to a buyer. Prof. Charles: Exactly…It is so important to remember that nearly everything purchased is covered by a warranty. To recover under a cause of action based on a breach of warranty theory, the plaintiff must establish whether there was an express or implied warranty. Donald: Professor, in our discussion, you have provided us with a significant amount of information about strict/products liability. I would like to know what is an implied warranty and an express warranty? Prof. Charles: An implied warranty is a guarantee of a product’s quality that is not expressed in a purchase contract. An implied warranty assumes that the item sold can perform the function for which it was sold. Express warranty is a specific promise or affirmation made by the seller to the buyer, such as “X” drug is not subject to addiction. If the product fails to perform as advertised, it is a breach of express warranty. Casey: So, if a food product injures a buyer through contamination, is that a breach of implied or express warranty? Prof. Charles: Usually an implied warranty. These cases are usually not based on negligence nor on a breach of the usual implied warranty. It is based on the broad principle of the public policy to protect human health and life.Slide 8Scene 5 Summary Picture of Casey and Donald as they speak.Prof Charles: We are just about out of time. Let’s go over what we learned in this lesson. Today, our discussion focused on tort law with an emphasis on negligence in healthcare settings. 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. Tort actions touch on individual both on a personal and a professional level, which is why those involved in the healthcare field should be armed with the knowledge necessary to make them aware of their rights and responsibilities. Before we adjourn, are there any questions? Donald: I have no questions; I think that the information was clearly presented, Professor. Casey: No questions for me… . Professor Charles: Well, if there are no further questions, I will say good evening and I will see you next time.
