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 Read carefully Chapters 2, 3, 4, and 5 Power Point Presentations under the Lectures Folder. Select your favorite chapter and write a summary report (250 words) based on your own research. 

© 2014 Jones and Bartlett Publishers

Chapter 5

Criminal Aspects of Health Care

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LEARNING OBJECTIVES

  • Explain what criminal law is, the classification of crimes, and its purpose.
  • Describe the criminal procedure process from arrest through trial.
  • Describe several of the more common crimes that occur in the healthcare setting.

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Criminal law

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Purpose of Criminal Law

  • Maintain Public Order & Safety
  • Protect Individuals
  • Use Punishment as a Deterrent
  • Provide for Criminal Rehabilitation
  • What are the definitions of a crime, misdemeanor & felony?

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Definitions

  • Crime – social harm defined & made punishable by law.
  • Misdemeanor – offense punishable by less than 1 year in jail and/or a fine.
  • Felony – imprisonment in a state or federal prison for more than a year.
  • What is an arraignment?

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Arraignment

  • Formal reading of the accusatory instrument
  • a generic term that describes a variety of documents, each of which accuses a defendant of an offense
  • includes the setting of bail
  • What is the purpose of a conference with the defendant and prosecutor?

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Conference

  • Meeting for purposes of deliberation
  • Plea bargaining time
  • Commences with the goal of an agreed-upon disposition
  • If no disposition can be reached, a case may be assigned to a trial court.
  • Describe the process of conducting a criminal trial.

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Criminal Trial – I

  • Jury selection
  • Opening statements
  • Presentation of witnesses & evidence
  • Standard of proof must be beyond a reasonable doubt.
  • Summations

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Criminal Trial – II

  • Instructions to the jury by the judge
  • Jury deliberations
  • Verdict
  • must be unanimous
  • Opportunity for appeal
  • What does the False Claims Act of 1986 prohibit?

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False Claims Act of 1986

  • Knowingly presenting a false claim for payment.
  • making a false record to get a false claim paid.
  • conspiring to defraud the government.
  • making a false record to avoid an obligation to pay or transmit property to the government.

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Ethics in Patient Referral Act

  • Prohibits physicians who have ownership interest or compensation arrangements with a clinical laboratory from referring Medicare patients to that laboratory.
  • Requires Medicare providers to report the names & provider numbers of all physicians or their immediate relatives with ownership interests in a provider entity.

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Health Care Fraud: HIPAA

  • Provides criminal & civil enforcement tools & funding to fight health care fraud.
  • HIPAA requires U.S. AG & Secretary of DHHS acting through OIG to establish coordinated national Health Care Fraud & Abuse Control Program.
  • Program provides coordinated national framework for federal, state, & local law enforcement agencies; private sector; & public to fight health care fraud.

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Kickbacks

  • Laboratory
  • Architectural Contract

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Health Care Fraud: Text Cases

  • Defrauding Medicare and Medicaid
  • False Medicaid Claims
  • Pharmacist Submits False Drug Claims
  • Inflating Insurance Claims
  • Falsification of Records

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Falsification of Records

  • Falsification of medical & business records is grounds for criminal prosecution.
  • Anyone who suffers damage as a result of falsification of records may claim civil liability.
  • The provider could lose Medicare & Medicaid funding.

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Misuse and Theft of Drugs

  • Internet Pharmacy
  • Failure to review patient prescriptions prior to dispensing.
  • Fraudulent billing.
  • Transfer of funds to offshore account.

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Physicians: Victims of Fraud
Prevention

  • Familiarize themselves with patient-billing & recordkeeping practices.
  • Avoid having one individual in charge of billing & collection procedures.
  • Arrange for an annual audit of office procedures & records by an outside auditor.

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Patient Abuse

  • Patient abuse is the mistreatment or neglect of individuals who are under the care of a health care organization.
  • Describe the signs of resident abuse the surveyors look for.

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Forms of Abuse

  • Physical
  • Psychological
  • Medical
  • Financial

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Abuse Cases – I

  • Criminal Negligence
  • Reckless disregard for the safety of others.
  • Willful indifference to an injury that could follow an act.
  • Neglect of Residents
  • Abuse & Revocation of License
  • Abusive Search
  • Physical Abuse

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CRIMINAL NEGLIGENCE

  • Neglect of Residents
  • Abuse and Revocation of License
  • Abusive Search
  • Medication Violations and Resident Abuse
  • Assisted Living Facilities

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Murder

  • Unusual Number of Deaths
  • Nurse Sentenced for Diabolical Acts
  • Fatal Injection of Pavulon
  • Fatal Injection of Lidocaine

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Petty Theft

  • Cost Millions Annually
  • Patient Valuables
  • Staff Valuables
  • Supplies
  • Medical Equipment

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Case: Sexual Assault

  • An action was filed against a nursing facility after the plaintiff’s mother was sexually assaulted by a dementia patient.
  • There was testimony that the facility was properly staffed.
  • There was testimony that the resident suffered no physical injury & she was not aware of the assault.
  • What was the Court’s decision?

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Court Decision

  • The court found that the facility had not breached its duty of care.

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Review Questions – I

What are the objectives of criminal law?

Describe the difference between a misdemeanor & a felony. Give an example of each.

List the processes of a criminal trial.

Why has health care fraud been so costly?

Based on cases in the chapter, discuss why physicians historically have been reluctant to remove a patient’s life-support systems.

Discuss why you believe patients are sometimes reluctant to complain about their health care.

© 2014 Jones and Bartlett Publishers

© 2014 Jones and Bartlett Publishers

Chapter 2

Health Care Ethics

© 2014 Jones and Bartlett Publishers

LEARNING OBJECTIVES

  • Describe the concepts of ethics & morality.
  • Describe how an understanding of ethical theories, principles, virtues, & values are helpful in resolving ethical dilemmas.
  • Explain the relationship between spirituality & religion.
  • Discuss situational ethics & how one’s moral character can change as circumstances change.
  • Explain how one’s reasoning skills influence the decision-making process.

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I expect to pass through this world but once. Any good therefore that I can do, or any kindness I can show to any creature, let me do it now. Let me not defer it, for I shall not pass this way again

−Stephen Grellet

© 2014 Jones and Bartlett Publishers

Ethics

  • Branch of philosophy that deals with values relating to human conduct with respect to rightness & wrongness of actions & goodness & badness of motives & ends.
  • Focus on rightness & wrongness of actions.
  • Concerned with what is morally good & bad, right & wrong.

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Ethics – II

  • Microethics
  • individual’s view of right & wrong.
  • Macroethics
  • global view of right & wrong.

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Ethics – III

  • Philosophical Ethics
  • involves inquiry into
  • ways of life
  • rules of conduct
  • Religious Ethics
  • a general pattern or“Way of Life”
  • Professional Ethics
  • a set of rules or moral code

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Morality

  • Code of conduct
  • Guide to behavior
  • Describes class of rules held by society to govern conduct
  • Moral dilemmas occur
  • when moral ideas of right & wrong conflict

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Morality Legislated

  • Law is distinguished from morality in that
  • law has explicit rules, penalties, & officials who interpret laws & apply penalties.
  • Laws created to set boundaries for societal behavior.
  • laws are enforced to ensure expected behavior happens.

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Moral Judgments

  • Judgments are concerned with
  • what an individual or group believes to be the right or proper behavior in a given situation
  • No Universal Morality
  • right varies from nation to nation, culture to culture, religion to religion, as well as from one person to the next

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Code of Conduct

  • Prescribe standards of conduct
  • States principles
  • Expresses responsibilities
  • Defines rules expressing duties of professionals to whom they apply

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Ethical Theories I

  • Normative Ethics
  • attempt to determine what moral standards should be followed so that human behavior & conduct may be morally right
  • General Normative Ethics
  • Applied Ethics
  • Descriptive Ethics
  • Meta-ethics

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Ethical Theories II

  • Consequential Ethics
  • theory of ethics that emphasizes morally right action is whatever action leads to maximum balance of good over evil
  • Utilitarian Ethics
  • concept that moral worth of an action is solely determined by its contribution to overall usefulness

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Ethical Theories III

  • Nonconsequential Ethics
  • Denies consequences of an action are only criteria for determining morality of an action
  • Deontological Ethics
  • doing right thing is good
  • might not always lead to or increase the good & right thing sought after

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Ethical Theories IV

  • Ethical Relativism
  • morality is relative to the norms of one’s culture

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Principles of Ethics – I

  • Ethical principles
  • universal rules of conduct, derived from ethical theories that provide a practical basis for identifying what kinds of actions, intentions, & motives are valued.
  • Autonomy
  • Life or Death: the Right to Choose

Principles of Ethics – II

  • Beneficence
  • Nonmaleficence
  • Justice
  • Distributive Justice

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Virtues & Values

  • Virtue
  • normally defined as some sort of moral excellence or beneficial quality.
  • Moral value
  • relative worth placed on some virtuous behavior
  • What has value to one person may not have value to another.
  • A value is a standard of conduct.
  • Values used for judging goodness or badness of an action

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Pillars of Moral Strength – I

  • Courage
  • Wisdom
  • Temperance
  • Commitment
  • Compassion
  • Conscientious
  • Discernment
  • Fairness

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Pillars of Moral Strength – II

  • Fidelity
  • Freedom
  • Honesty/Trustworthiness/Truth-Telling
  • Integrity
  • Kindness
  • Respect
  • Hopefulness
  • Tolerance

© 2014 Jones and Bartlett Publishers

Spirituality & Religion

  • Spirituality
  • in the religious sense implies that there is purpose & meaning to life; spirituality generally refers to faith in a higher being
  • Religion
  • serves a moral purpose by providing codes of conduct for appropriate behavior through revelations from a divine source

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Religions – I

  • Judaism
  • Hinduism
  • Buddhism
  • Taoism
  • Zen
  • Christianity
  • Islam

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Secular Ethics

  • Based on codes developed by societies that have relied on customs to formulate their codes
  • Code of Hammurabi
  • Atheism

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Situational Ethics – I

  • Outcome or consequences of an action in which ends can justify the means
  • Moral values & moral character can be compromised when faced with difficult choices

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Situational Ethics – II

  • Good people behave differently in different situations.
  • Good people sometimes do bad things
  • One’s moral character sometimes change as circumstances change
  • thus the term situational ethics

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Sustaining Life
Situational Ethics

  • Decision not to use extraordinary means to sustain life of an unknown 97 year old “may” result in a different decision if the 84 year old is one’s mother.

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Reasoning
Decision-Making – I

  • Reason includes the capacity for logical inference and the ability to conduct inquiry, solve problems, evaluate, criticize, and deliberate about how we should act and to reach an understanding of other people, the world, and ourselves.

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Reasoning
Decision-Making – II

  • Partial reasoning involves bias for or against a person based on one’s relationship with that person.
  • Circular reasoning describes a person who has already made up his or her mind on a particular issue and sees no need for deliberation.

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Reasoning
Decision-Making – III

  • Ethics in decision-making involves the process of deciding the right thing to do when facing a moral dilemma.
  • Ethical dilemmas occur when ideas of right and wrong conflict.

© 2014 Jones and Bartlett Publishers

Review Questions – I

1. Discuss the concept of morality.

2. Describes the various theories of ethics.

3. Describe the various principles of healthcare ethics.

4. Describe desirable virtues and values in the healthcare setting.

5. Given an example of situational ethics.

6. Discuss the importance of reasoning in the decision-making process.

© 2014 Jones and Bartlett Publishers

© 2014 Jones and Bartlett Publishers

Chapter 3

Reflections of the Past

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History is relevant to understanding the Past, defining the Present, and influencing the Future.

© 2014 Jones and Bartlett Publishers

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LEARNING OBJECTIVES

  • Explain purpose of the Patient Protection and Affordable Care Act.
  • Describe how advances in medicine over the centuries have not consistently been followed & continue to serve as reminders of the need to understand & build upon best practices.

© 2014 Jones and Bartlett Publishers

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LEARNING OBJECTIVES

  • Explain how the conflicts of society due to politics, religion, & warfare have often impeded the growth of hospitals & at times contributed to their progression and many successes.
  • Describe how the advances in medicine led to the rise of the modern day hospital & improved upon the quality of patient care.

© 2014 Jones and Bartlett Publishers

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Who Am I?

I was Created at the End of the Renaissance,

Watched Pirates Rule the Oceans,

As Ivan the Terrible Ruled Russia,

And witnessed the arrest of Galileo,

For Believing the Earth Revolved Around the Sun.

I AM HISTORY

© 2014 Jones and Bartlett Publishers

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History, despite its wrenching pain,

cannot be unlived,

but if faced with courage,

need not be lived again.

−Maya Angelou

© 2014 Jones and Bartlett Publishers

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Hindu & Early Egyptian Hospitals

  • 6th century BC: Buddha appointed a physician for every 10 villages
  • built hospitals for the crippled & the poor;
  • Provided Fresh Fruits & Vegetables
  • Administered Medications
  • Provided Massages
  • Maintained Rules of Personal Cleanliness

Hindu Physicians

  • Took Daily Baths
  • Keep Hair & Nails Short
  • Wore White Clothes
  • Respected Confidence of Patients

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Egyptian Physicians

  • Used Castor Oil & Opium
  • Used Wooden Mallet for Anesthesia
  • Surgery mostly limited to Fractures
  • Medical Care in the Home
  • Temples functioned as Hospitals

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Early Greek & Roman Hospitals

  • Hospital derives from Latin word hospitalist, which relates to guests & their treatment
  • Early use of these institutions not merely as places of healing but as havens for the poor & weary travelers
  • Medical Practice Rife with Mysticism

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Greek Temple Medicine – I

  • Hospitals first appeared in Greece as Aesculapia
  • named after Greek god of medicine
  • Patients Presented Gifts before Altar
  • Greek Temples – Refuge for Sick
  • Holistic Medicine – Body & Soul
  • Medications – Salt, Honey, Sacred Springs
  • Hot & Cold Baths
  • Sunshine, Sea Air, Pleasant Vistas
  • Libraries for Visitors

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Temple at Epidaurus

  • 1st Clinical records
  • Inscribed on columns of temple
  • Recorded
  • Patients Names
  • Brief Histories
  • Treatment Outcomes

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Hippocrates – The Physician

  • Noted for:
  • Principles of Percussion & Auscultation
  • Performed surgery
  • Wrote about fractures
  • Described Epilepsy, TB, Malaria, & Ulcers
  • Maintained detailed records

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Early Christian Era

  • Hospitals Outgrowth of Religion
  • Care included – Magical & Religious Rites
  • Doctrines of Jesus – Love & Pity
  • Sick treated outside temples & churches

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Islamic Hospitals

  • Luxurious hospital accommodations frequently provided School at Gundishapur
  • Medical care free
  • Gundishapur
  • home to world’s oldest known teaching hospital

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Persian Physician Rhazes

  • Skilled in Surgery
  • Used Sheep Intestines for Suturing
  • Cleansed Wounds with Alcohol
  • 1st descriptions of smallpox & measles

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Islamic Medicine – I

  • Inhalation Anesthesia
  • Precautions against Adulterated Drugs
  • Origination of New Drugs
  • Asylums for Mentally Ill
  • Brilliant beginnings in Medicine
  • Promise that glowed in early medicine not fulfilled
  • Wars, Politics, Superstitions, stunted growth

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Early Military Hospitals – I

  • Limestone pillar – 2920 B.C.
  • Pictures illustrating wounded
  • Moses laid down rules of Military Hygiene
  • Hippocrates – “war is the only proper school for a surgeon”
  • Under Romans, Surgery Advanced
  • Experience through military surgery

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Medieval Hospitals – I

  • Religion – dominant influence in hospitals
  • England built Municipal Hospitals
  • Military Hospitals during Crusades
  • Lazar Houses Established

Hotel Dieu of Paris

  • Provided rooms for various stages of disease
  • Provided room for Convalescents
  • Provided room for Maternity Patients
  • Two persons often shared 1 bed
  • Draperies not washed, infection spread
  • Patients often worked on hospital’s farm

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Dark Age of Hospitals

  • Hospitals Commonly crowded patients into one bed
  • Monks preserved the writings of Hippocrates
  • Al-Mansur Hospital, built in Cairo in 1276
  • Equipped with separate wards for the more serious diseases
  • laid the groundwork for hospital progress to come in later centuries

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Hospitals of the Renaissance – I

  • Building of hospitals continued
  • New Drugs
  • Anatomy – Recognized Study
  • New writings Printed
  • New writings Printed
  • Dissections Performed
  • Surgery was more scientific
  • Van Leeuwenhoek- Microscope

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Hospitals of the Renaissance – III

  • 16th Century
  • Hospitals associated with Catholic Church ordered by Henry VIII to be given over to secular uses or destroyed
  • Sick Turned into Streets
  • Hospitals conditions intolerable
  • St. Bartholomew’s restored

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Hospitals of the Renaissance – III

  • Long robed surgeons
  • Trained in universities
  • Permitted to perform all surgeries
  • Royal College of Surgeons founded-1540
  • Short robed surgeons (barber-surgeons)
  • Generally allowed only to leech & shave

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Hospitals of the 18th Century

  • Royal College of Physicians Establishes Dispensary
  • Medications Distributed at cost to Poor
  • Free Medical Care for Poor
  • Controversies & lawsuits
  • Untimely End to Early Clinic

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Westminster Charitable Society

  • Established Similar Dispensary in 1715
  • Established Westminster hospital in 1719
  • Infirmary built – voluntary subscription
  • Staff provide services gratuitously
  • Deterioration of hospitals continues

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Early Hospitals in the U.S. – I

  • Manhattan Island
  • 1st account of hospital for sick soldiers
  • Philadelphia
  • 1st Almshouse Established – Philadelphia
  • The Pennsylvania Hospital – 1st chartered
  • Williamsburg, VA
  • Site of 1st Psychiatric Hospital

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Early Hospitals in the U.S. – II

  • Hotel-Dieu Paris, Dr. Jones wrote
  • 3-5 patients placed in 1 bed
  • Convalescent patients placed with dying
  • Fracture cases placed with infectious cases
  • 1/5th of 22,000 patients died each year
  • Patient wounds washed with same sponge
  • Infection rate said to be as high as 100%
  • Mortality after amputation as high as 60%

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Early Hospitals in the U.S. – III

  • Increase in Surgical Procedures
  • Inappropriate Wound Care Administered
  • Wards Filled with Discharging Wounds
  • Nurses of that period are said to have used snuff to make conditions tolerable

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Late 19th Century Renaissance – I

  • Nurses used Snuff to make Conditions Tolerable
  • OR Coats Worn for Months without Washing
  • Same Bed Linens Served Several Patients
  • Mortality from Operations 90 to 100%

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Late 19th Century Renaissance – II

  • Florence Nightingale improves care
  • Considered 1st hospital administrator
  • Founded Nightingale School of Nursing – 1860
  • Crawford Long uses ether as anesthetic to remove small tumor
  • American Medical Association founded – 1847
  • Chloroform 1st used as an anesthetic – 1847

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Mass General Hospital – 1846

  • W.T.G. Morgan Develops Sulfuric Ether
  • Morgan arranges for 1st operation under Anesthesia, using ether vapors
  • Surgery at Operating Theater – Mass General

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W.T.G. Morgan

  • Morgan performed surgery with on looking skeptical audience
  • Audience Astonished
  • Patient did not Scream
  • “Gentlemen,” Dr. Warren proclaimed, “this is no humbug!”
  • Discipline of anesthesiology was born.

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Semmelweis Of Vienna

  • Determined Deaths from Puerperal Fever of Maternity patients
  • due to infections transmitted by students leaving dissecting room to take care of maternity patients without washing hands.

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Civil War Days

  • As many as 25 to 50 beds in ward
  • Little provision for segregation of patients.

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Roosevelt Hospital – 1871

  • Built on lines of pavilion
  • small wards
  • set the style for new type of architecture
  • became know as the American plan

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Dr. W.G. Wylie – 1877

  • Favored Roosevelt Hospital pavilion
  • Wylie advocated temporary structure
  • to be destroyed when it became infected.

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America’s 1st Nursing Schools

  • Brigham and Women’s Hospital – 1872
  • Bellevue – 1873
  • Massachusetts General Hospital – 1873

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Medicine 1880 – 1890

  • Tubercle Bacillus Discovered
  • Pasteur vaccinated against anthrax
  • Koch Isolates Cholera Bacillus
  • Diphtheria 1st treated with antitoxin
  • Tetanus Bacillus & Parasite of Malarial Fever Isolated
  • Rabies Inoculation Successful
  • Halstead & Rubber Gloves – 1890
  • Bergmann & steam sterilization – 1886
  • Roentgen discovers the X-ray – 1895

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19th Century Inventions

  • Clinical Thermometer
  • Laryngoscope
  • Hermann Helmholtz Ophthalmoscope

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Medicine 1880 – 1890

  • Hospitals crowded, patients suffering
  • Scarlet Fever
  • Diphtheria
  • Typhoid
  • Smallpox
  • Most Disorders Untreated for
  • Metabolism
  • Glandular Disturbances
  • Nutritional Diseases

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20th Century Progress

  • Development of New Services
  • Progress of Non-profit Insurance Plans
  • Increased Public Confidence in Hospitals

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20th Century Inventions

  • Einthoven invents Electro-cardiograph
  • Wassermann Test for Pancreatic Function
  • Introduction of Radium for Treatment of Malignant Growths
  • Increased use of Examination of Tissue

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Hospital Standardization – 1918

  • American College of Surgeons – development of “Minimum Standards” for Hospitals
  • Established Requirements for Care of Patients
  • First Survey Conducted – 1918
  • Became “Joint Commission on Accreditation of Hospitals” in 1952
  • Today known as The Joint Commission


1929 Trying Period for Hospitals

  • Critical economic conditions
  • Lowered bed occupancy
  • Decreasing revenues from endowments

Latter Half of 20th Century

  • Increased hospital competition
  • Many advances in medical technology
  • CT, MRI, & PET scanners
  • For-profit chains spring up
  • Competing delivery systems
  • Many new medications introduced

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The 21st Century

  • 47 Million Uninsured Americans
  • Skyrocketing malpractice insurance premiums
  • High expectations of the public for miracles
  • Zero tolerance for mistakes

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The 21st Century- 2

  • Ethical Dilemmas (e.g., human cloning)
  • Era of information explosion
  • Physicians exiting the marketplace
  • Shortages of nurses, physical therapists
  • National Health Reform
  • Insurance
  • Boutique Medicine

© 2014 Jones and Bartlett Publishers

Just a Beginning

Because history often repeats itself, society must learn from its many lessons; otherwise, it will be doomed for a return to the dark ages of medicine.

© 2014 Jones and Bartlett Publishers

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Research: National Library of Medicine

  • Library collection contains 6 million items
  • One of worlds finest medical history collections
  • Website: www.nlm.nih.gov

© 2014 Jones and Bartlett Publishers

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What we have come to expect,

and Our future directions,

Have been influenced by what has preceded us.

−Author Unknown

Review Questions – I

1. Who is often recognized as being the first hospital administrator?

2. Which invention attributed to Van Leeuwenhoek had a pronounced influence on the creation of the sciences of cytology, bacteriology, and pathology?

3. What issue did Florence Nightingale identify in the 1800s as being a major source/vehicle for the spread of infection and continues to be so today?

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Questions – II

4. What data did Semmelweis collect? What was the significance of that data as related to performance improvement in the present-day hospital?

5. What were two of the greatest influences in the development of present-day hospitals?

6. Describe how you think history is repeating itself in today’s health care system.

© 2014 Jones and Bartlett Publishers

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© 2014 Jones and Bartlett Publishers

Chapter 4

Tort Law

© 2014 Jones and Bartlett Publishers

LEARNING OBJECTIVES

  • Describe what a tort is and the purpose of tort law.
  • Identify, understand, and describe the elements of negligence.
  • Identify and describe intentional torts.
  • Explain the theories a plaintiff could use in pursuing a products liability case and the defenses a manufacturer might use to defend itself.

© 2014 Jones and Bartlett Publishers

Tort

  • A civil wrong, other than a breach of contract, committed against a person or property for which a court provides a remedy in form of an action for damages.

© 2014 Jones and Bartlett Publishers

Objectives of Tort Law

  • Preservation of peace between individuals.
  • Find fault for wrongdoing.
  • Deterrence by discouraging the wrongdoer from committing future tortious acts
  • Compensation to indemnify injured person/s.

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Categories of Tort Law

  • Negligence
  • Intentional
  • Strict liability regardless of fault
  • e.g., products liability

© 2014 Jones and Bartlett Publishers

Negligence

  • Commission or omission of an act that a reasonably prudent person would or would not do under given circumstances.

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Commission of an Act

  • Administering the wrong medication
  • Administering the wrong dosage of a medication
  • Administering medication to the wrong patient
  • Performing a surgical procedure without patient consent
  • Performing a surgical procedure on the wrong patient
  • Performing the wrong surgical procedure

Omission of an Act

  • Failing to conduct a thorough history & physical examination
  • Failing to assess & reassess a patient’s nutritional needs
  • Failing to administer medications
  • Failing to order diagnostic tests
  • Failing to follow up on abnormal test results

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Malpractice

  • Negligence of a professional person
  • surgeon who conducts a surgical procedure on wrong body part

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Criminal Negligence

  • Reckless disregard for safety of another.
  • Willful indifference to injury that could follow an act.

© 2014 Jones and Bartlett Publishers

Forms of Negligence

  • Malfeasance
  • Execution of an unlawful or improper act, i.e., performing a partial birth abortion when prohibited by law
  • Misfeasance
  • Improper performance of an act, i.e., wrong sided surgery.
  • Nonfeasance
  • Failure to act when there is a duty to act, i.e., failing to prescribe medications that should have been under the circumstances

Degrees of Negligence

  • Slight
  • Minor deviation of what is expected under the circumstances.
  • Ordinary Negligence
  • Failure to do what a reasonably prudent person would or would not do.
  • Gross Negligence
  • Intention or wanton “omission of care” that would be proper to provide or the “commission of an act” that would be improper to perform.

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Elements of Negligence

  • Duty to Use Due Care
  • Standard of care
  • Breach of Duty
  • Injury/Actual Damages
  • Proximate Cause/Causation
  • Foreseeability

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I. Duty to Care

  • Obligation to conform to a recognized standard of care.

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Standard of Care

  • Describes the conduct expected of an individual in a given situation.
  • Describes how a “reasonably prudent person” would or would not act under “similar circumstances”.
  • Measuring stick for properly assessing actual conduct required of an individual.

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Reasonably Prudent Person

  • A nonexistent – hypothetical person who is put forward as community ideal of what would be considered reasonable behavior.

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Similar Circumstances

  • Circumstances at the time of the injury.
  • Circumstances of the alleged wrongdoer/s at the time of injury.
  • Age
  • Physical condition
  • Education & training
  • Licenses held
  • Mental capacity, etc.

Determining Standard

  • Established by legislative enactment or administrative regulation.
  • Adopted by the court from a legislative enactment or administrative regulation.
  • Established by judicial decision.
  • Applied to the facts of the case by the trial judge or jury, if there is no such enactment, regulation or decision.
  • courts often rely on testimony of an expert witness as to the standard of care required.

Community v. National Standard

  • Community Standard
  • hometown standard (we want to do things our way).
  • National Standard
  • most currently accepted standard of care on a national basis.

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Case: Hiring Practices

  • Nurse hired sight unseen over telephone.
  • Applicant falsely stated in an employee application that he was licensed as an LPN.
  • His license was not verified by the employer.
  • He had committed 56 criminal offenses of theft.
  • He assaulted a resident a resident & broke his leg.

Case: Hiring Practices
Duty

  • Standard expected:
  • Employer had a “duty” to validate the nurse’s professional license.

II. Breach of Duty

  • Deviation from the recognized standard of care.
  • Failure to adhere to an obligation.
  • Failure to conform to or the departure from a required duty of care owed to a person.
  • Occurs when
  • a physician fails to respond to his/her on-call duties.
  • an employer fails to adequately conduct a pre-employment check (e.g., licensure, background check).

Case: Hiring Practices
Breach of Duty

  • The employer failed to verify the applicant’s licensure.
  • A more thorough background check should have revealed this employee’s previous criminal conduct.

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III. Injury

  • Actual damages must be established.
  • If there are no injuries, no damages are due.

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Case: Hiring Practices
Injury

  • The resident suffered a broken leg.
  • Hospital vicariously liable for nurse’s conduct.

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IV. Causation

  • Proximate cause
  • breach of duty was the proximate cause of the injury
  • But-for Rule
  • the defendant’s action, the injury would not have occurred

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Case: Hiring Practices
Causation

  • Reasonable anticipation that harm or injury was likely to occur.
  • The patient suffered a broken leg
  • Departing from recognized standard of care
  • failure to verify licensure & conduct an adequate background check

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Hiring Practices – III

  • Injury resulted from the breach of duty.
  • Injury was foreseeable.

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Failure to Hydrate
Causation

  • Failure to administer proper hydration.
  • Not unreasonable to conclude that one’s dehydration can be caused by failing to provide water.

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Foreseeability

  • Reasonable anticipation that harm or injury is likely to result from an act or an omission to act.

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Test for Foreseeability

  • The test for foreseeability is whether a person of ordinary prudence and intelligence should have anticipated danger to others caused by his or her negligent act.

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Case: Hiring Practices
Foreseeability

  • A person of ordinary prudence and intelligence should have anticipated the danger to the resident caused by the employer’s negligent act.

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Hot Radiator
Foreseeability

  • A patient’s left foot came in contact with a radiator and she suffered third-degree burns.
  • The defendant had knowledge of the plaintiff’s condition.
  • The defendant should have shielded the radiator or not placed the plaintiff next to it.

Sponge & Instrument Count

  • Dr. Smith owns the local Outpatient Surgery Center.
  • He instructs employees to count all instruments & surgical sponges following a surgical procedure, prior to closing the surgical site.
  • Annie, an employee, failed to conduct the count following Bills surgery.
  • Two months later, Bill, suffering from extreme abdominal pain, was noted to have several sponges and an instrument in his abdomen.
  • He had developed a massive infection.
  • Was the doctrine of Vicarious liability applicable in this case?

YES

  • Even though Annie had strict instructions to count the sponges & surgical instruments prior to closing the surgical site, she failed to do so.
  • To determine otherwise would undermine the doctrine of vicarious liability, since employers would almost always escape liability by presenting evidence that employees were given careful instructions.

Failure to Follow Instructions

  • Sarah has a minor surgical procedure under general anesthesia at ABC Surgery Center.
  • She was instructed not to drive home after release. Her daughter Leslie picks her up.
  • On the way home Leslie stops for a donuts. Meanwhile, her mother moves to the driver seat.
  • Upon leaving the parking lot, Sarah hits Carol’s car.
  • Carol sustains a broken arm & sues ABC for releasing Sarah before she is completely recovered from the anesthesia.
  • Was the hospital liable for Sarah’s injuries?

NO!

  • Sarah was negligent, not the hospital. She failed to adhere to both verbal & written instructions not to drive following anesthesia.
  • It was Sarah’s duty not to drive and her breach of that duty that caused Carol’s injury.

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Remember

  • The four elements of negligence must be presented in order for the plaintiff to recover damages caused by negligence.

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Intentional Torts

  • Assault and Battery
  • False Imprisonment
  • Defamation of Character
  • Fraud
  • Invasion of Privacy
  • Intentional Infliction of Mental Distress

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Assault

  • Deliberate threat, coupled with apparent ability to do physical harm to another. Actual contact not necessary.

Person attempting to touch another unlawfully must possess apparent present ability to commit battery.

Person threatened must be aware of or have actual knowledge of an immediate threat of a battery and must fear it.

Battery

  • Intentional touching of another’s person in socially impermissible manner without person’s consent.
  • Failure to obtain consent prior to surgery.
  • Administering blood against patient’s express wishes.
  • Physically restraining one who refuses to eat.

False Imprisonment

  • Unlawful restraint of individual’s personal liberty or unlawful restraining or confining an individual.
  • Restraining patient without cause.
  • Locking patient in secluded room for failing to attend therapy session.

Legal Justification for Restraint or Seclusion

  • Person represents a danger to self or others.
  • Criminal conduct.
  • Persons with highly contagious diseases, as provided by state or federal statutes.

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Reducing Use of Restraints – I

  • Development of policies and procedures that conform to state & federal guidelines
  • Education & orientation of staff
  • Education for patients & families
  • Sound appraisal of need for restraints
  • Application of least restrictive restraints
  • Continuous monitoring of patients to determine continuing need for restraints

Defamation of Character

  • The offense of injuring a person’s character, fame, or reputation by false & malicious statements.
  • False oral or written communications to someone other than person defamed that tends to hold that person’s reputation up to scorn or ridicule in eyes of others.

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Defamation of Character

  • Libel – written form of defamation
  • Signs
  • Letters
  • Photographs
  • Cartoons
  • Slander – oral form of defamation

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Proof of Defamation

  • A false & defamatory statement.
  • Communication of a statement to a person other than the plaintiff.
  • Fault on the part of the defendant.
  • Special monetary harm.

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Proof of Harm Not Required
to recover damages when:

  • Accusing a person of a crime.
  • Accusing a person of having a loathsome disease.
  • Using words are harmful to a person’s profession or business.
  • Calling a woman unchaste.

Libel – Performance Appraisals

  • Performance appraisals are not meant for general publication.
  • To recover damages, the appraisal must be published in defamatory manner that injures one’s reputation.

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Cartoon – I

  • Jack draws a cartoon depicting Paul having a rendezvous with a new grad nurse in an empty patient room. The incident in fact never occurred.
  • Can a defamatory statement can take the form of a cartoon?
  • Yes, a defamatory statement can take the form of a cartoon because it is capable of adversely affecting a person’s reputation.

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Newspapers Articles

  • Newspaper editorial cartoon depicting 3 persons resembling gangsters in dilapidated building, identified as particular facility that had been closed by state order, was an expression of pure opinion and was protected by 1st Amendment.

Accused of an Affair

  • Nurse Rachet suggests to Dr. Smith that he should leave his wife Sharon because she is having an affair with Dr. Doe. Dr. Smith writes a letter to Mrs. Doe, repeating Rachet’s statement.
  • Assuming Dr. Smith’s letter is defamatory, is it libel or slander?

Accused of an Affair

  • It is libel, even though Dr. Doe is repeating a slanderous statement.
  • The reverse is not true – the spoken repetition of a written defamation is still considered libel.
  • The rule is: once libel, always libel.

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Slander

  • Person who brings suit must prove special damages.
  • When defamatory words refer to person in professional capacity, professional need not show that words caused damage.

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Defenses to a Defamation Action

  • Truth – no liability for defamation if it can be shown that statement is true.
  • Privilege
  • Absolute
  • Qualified

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Absolute Privilege

  • Statements made during judicial & legislative hearings
  • Confidential communications between spouses

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Qualified Privilege

  • Statements made as result of a legal or moral duty to speak in interests of 3rd persons
  • Statements must be without malice

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Public Figures

  • Vulnerable to public scrutiny
  • Suits generally dismissed in absence of
  • malice
  • actual knowledge statements are false
  • recklessness as to truth

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Proof of Fraud

  • Misrepresentation by the defendant.
  • Knowledge of falsity.
  • Intent to reduce reliance on misrepresentation.
  • Justifiable reliance by the plaintiff.
  • Damage to the plaintiff.

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Health Care Fraud

  • Billing Tradename Drugs/Issuing Generic
  • Office Visits/Double Billing
  • Billing for Services not Rendered
  • Accepting referral fees

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Invasion of Privacy

  • The right to
  • be left alone
  • be free from unwarranted publicity
  • be free from exposure to public view
  • be free from unwarranted intrusions into a one’s personal affairs
  • personal privacy
  • have records/kept confidential

Intentional Infliction
of Mental Distress

  • Conduct that is so outrageous that it goes beyond bounds tolerated by decent society.

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Mental Distress

  • Grief
  • Shame
  • Public humiliation
  • Despair
  • Shame
  • Human pride

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Mental Distress

  • Mother shown premature infant in a jar.

Johnson v. Womens Hospital

  • Verbally abusive physician to patient and/or spouse.

Greer v. Medders

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Fraud

  • Willful & intentional misrepresentation that could cause harm or loss to person or property.
  • e.g., purposeful concealment from patient of the presence of surgical sponges in his/her abdomen following surgery.

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Products Liability

  • Liability of a manufacturer, seller, or supplier of chattels to a buyer, or other third party for injuries sustained because of a defect in a product.

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Products Liability Legal Theories

  • Negligence
  • Breach of warranty
  • Express
  • Implied
  • Strict liability

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Negligence

  • Duty
  • Product manufactured by the defendant
  • Breach
  • Product defective when it left the manufacturer
  • Injury
  • Plaintiff/s injured by the product
  • Causation
  • Product proximate cause of injury

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Defective X-ray Unit – I

  • Mindy places Candice on the table of the hospital’s newly manufacturer-installed x-ray unit.
  • While in the control room, Mindy hears a crash.
  • She rushes to the patient & finds that a section of the x-ray unit fell on Candice, further injuring her already broken leg.
  • Candice sues the manufacturer for negligence.
  • Can the manufacture be held liable for the plaintiff’s injuries?

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YES!

  • Duty: manufacturer to properly install the x-ray unit.
  • Breach: failure to properly install the x-ray unit.
  • Injury: plaintiff suffered injury.
  • Causation: improper installation was the proximate cause of the plaintiff’s injury.

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Express Warranty

  • Includes specific promises or affirmations made by seller to buyer.
  • e.g., drug manufacturer represents the product as free from addiction & is not

Crocker v. Winthrop Laboratories

*

Implied Warranty

  • A warranty that exists by operation of the law as a matter of “public policy” for protection of the public.
  • e.g., consumers have right to assume that food is not contaminated

Jacob E. Decker & Sons v. Capps

Strict Liability

  • Liability without fault
  • Elements required to establish strict liability
  • Product manufactured by defendant
  • Product defective at time it left manufacturer
  • Plaintiff injured by product
  • Defective product proximate cause of injuries

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Wrong Medication – I

  • Stanley refills his drug prescription at D Drugs, where he has been a customer for 10 years.
  • Prior to taking his nightly dosage, he noticed the pill appeared larger than normal.
  • He phoned D Drugs & explained his concern.
  • The Pharmacist assured Stanley generic drugs sometimes are larger because of formula fillers but that the medication dosage in his drug was correct.

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Wrong Medication – II

  • Stanley took the drug & never woke up; the dosage given was 5 times that which had been prescribed.
  • The container from which the pharmacist filled Stanley’s prescription had been mislabeled by the manufacturer.

Wrong Medication – III
Court’s Decision

  • Product was manufactured by the defendant
  • Product defective at time it left manufacturer
  • The drug was placed in a mislabeled container.
  • Plaintiff injured by the product
  • Stanley passed away in his sleep.
  • Defective product proximate cause of injuries
  • The mislabeled container was the proximate cause of Stanley’s death.

Products Liability
Res Ipsa Loquitur

  • Must establish
  • Product did not perform in way intended
  • Product not tampered with by buyer/3rd parties
  • Defect existed at time it left defendant

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Products Liability Cases

  • Tainted Tylenol Capsules
  • Elsroth v. Johnson & Johnson
  • Manufacture of unsafe drugs
  • Merck’s Vioxx

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Products Liability Defenses – I

  • Assumption of the Risk
  • voluntary exposure to risks: Smoking, radiation therapy, Chemotherapy
  • Intervening Cause
  • an IV solution contaminated by product user
  • Contributory Negligence
  • use of product in a way it was not intended to be used.

Products Liability Defenses – III

  • Comparative Fault
  • injury due to concurrent negligence of both manufacturer & plaintiff.
  • Disclaimers
  • manufacturers inserts

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Review Questions – I

Describe the objectives of tort law.

Discuss the distinctions among negligent torts, intentional torts, and strict liability.

What forms of negligence are described in this chapter?

How does one distinguish between negligence and malpractice?

What elements must be proven in order to be successful in a negligence suit? Illustrate your answer with a case (the facts of the case can be hypothetical).

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Review Questions – III

Can a “duty to care” be established by statute or contract? Discuss your answer.

Describe the categories of intentional torts.

How does slander differ from libel? Give an example of each.

What is products liability? Describe what legal theories an injured party may use in proceeding with a lawsuit against a seller, manufacturer, or supplier of goods.

Describe the defenses often used in a products liability case.