...Medical Malpractice How is the Standard of Care in Medical Malpractice Applied in the State of Texas? Any medical professional who actively participates in the treatment and care of patients has an obligation and duty to adhere to a professionally established standard of care. When a professional fails to comply with the standard of care, the results can be devastating for the patient and the family. This can result in medical malpractice cases against the medical care provider(s). There is no medical definition for “standard of care” although the term is firmly established in law and is defined as “the caution that a reasonable person in similar circumstances would exercise in providing care to a patient” (The Dictionary.com, 2007). To the physicians, the “standard of care” is the diagnostic and treatment process that a doctor should practice for a given illness, patient, and set of circumstances. The term “standard of care” represents an essential component of an action in medical malpractice in proof that the doctor in question failed to provide the required standard of care under the circumstances (Sullivan, W., 2003). Medical malpractice is a broad term generally used to describe any treatment, lack of treatment, or other departure from accepted standards of medical care, health care, or departure in safety on the part of a health care provider that causes and/or results in harm to a patient. In law, medical malpractice is...
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...Malpractice Statutes Tort is an intentional or unintentional, non-criminal wrong that causes injury to another party. The injury can be physical, mental, or monetary. Once an injury occurs the wronged party can sue the wrongdoer for damages (Simon, Eddins, & Greenstone, 2009). Malpractice is one type of tort; tort reform is passed at a state level in regard to the laws regarding malpractice. The state can develop laws that cap the amount of reimbursement a judge can award for punitive damages a patient or family can acquire for damages in relation to malpractice. Tort reform, is an aspect that can attract physicians to specific states based on how friendly the practice environment is for health care providers. Tort reform aims to limit the liabilities of the wrongdoer. Those supporting tort reform claim that such changes will reduce frivolous lawsuits therefore reducing the cost of insurance (Simon et al., 2009). Tort reform can put tighter constraints on medical malpractice lawsuits taken to court, opposed to those that are dismissed. Essentially medical malpractice is, negligence or error committed by a health care professional where there is harm caused to the patient. Reductions of malpractice insurance would serve to reduce the cost of health care. Each state sets its own requirements regarding what is required for practitioners to have for insurance coverage to cover the practitioner for any lawsuits charge on them for malpractice. This paper will review two different...
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...Medical Malpractice Everyone makes mistakes, but some are more deadly than others. Malpractice is the illegal or negligence, professional activity or they’re working out of the their scope of practice. Medical malpractice is one of the top causes of death in the United States. With this being said, insurance for medical practitioners would be considerably higher. Should the amount of malpractice insurance be lowered even though malpractice is one of the leading causes of death? The answer is yes, malpractice insurance should be lowered. Only 85,000 out of 225,000 people file a lawsuit against a malpractice (Nilsson, Traumatized). Medical malpractice is the 3rd highest cause of death (hopkinsmedicine.org). Just like a great deal of other things...
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...State Medical Malpractice Creating Change Within Organizations HCS 587 Most hospitals, staff nurse and physicians biggest fear, is being sued for malpractice. As health care providers, we strive to do right by the patient, always practicing safety first. Medical malpractice, periodically referred to as medical negligence, it happens when a health care provider violates the governing standard of care when providing treatment to a patient, the source the patient to suffer an injury. The United States malpractice system has two objectives: to compensate patients who are injured through negligence by a healthcare provider and to discourage health care providers from practicing negligently Malpractice is a personal-injury law. For a person to be able to sue the plaintiff they must prove that the “defendant breached his/her duty by failing to adhere to the standard of care, and the breach of duty caused an injury to the the plaintiff” (Studdert,et al, 2004). It is up to the plaintiff to prove with evidence that the health care provider, hospital or clinic is responsible. In the United states, we have over 50 states and each and every one of them have their own medical malpractice statutes/laws. Majority seem to not have a good model to be an example of medical malpractice statutes, below Nebraska and Indiana’s statutes seem to be doing something right. They both also have similarities which may be why I choose them and prefer there way of dealing with damages...
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...National estimates of medical liability system costs—including settlements, legal and administrative costs and defensive medicine—range from $55.6 billion annually to $200 billion annually (NCSL, 2011). Medical malpractice reform, also known as tort reform, includes strategies to limit medical malpractice costs, deter medical errors, and ensure that patients who are injured by medical negligence are fairly compensated. Tort reform has the potential to reduce health care expenditures by reducing the number of malpractice claims, the average size of malpractice awards and tort liability system administrative costs. It also may lead to fewer instances of defensive medicine where physicians order tests and procedures not primarily to ensure the health of the patient but as a safeguard against possible medical malpractice liability (NCSL, 2011). Medical malpractice reform proponents argue that tort reforms—such as limiting malpractice awards, tightening statutes of limitations for filing claims, increasing expert witness standards, and screening cases before they go to trial—not only reduce overall medical care spending but also increase access to care (NCSL, 2011). Strategies to improve malpractice claims include limiting awards; placing stricter limits on statutes of limitations; establishing minimum qualifications for expert witnesses; periodic payment provisions; modified Collateral Source Rules; Attorney Contingent fee limits; and other medical Liability related reforms...
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...Bill’s negligence. Bill claims that Janet’s own negligence contributed to causing the accident. Contributory negligence would completely bar Janet’s claim, even though Bill is partly at fault, too. Comparative Negligence Dr. Turner malpractices, but the patient makes the situation worse by failing to take the prescribed medication. The jury decides the harm was caused 75% by the doctor and 25% by the patient. In such a case, the doctor would pay the patient 75% of her damages. Under comparative negligence, the party at fault pays the percentage damages he or she causes. Modified Comparative Negligence Some states create additional requirements if the plaintiff is partly at fault. These states require that the defendant’s fault meet a minimum threshold before the defendant has to pay anything. A common threshold might be requiring that defendant’s fault be greater than plaintiff’s. Example In the Dr. Turner case we just looked at, the doctor's negligence was greater than the patient’s negligence. The threshold is met and Dr. Turner pays 75% of damages. However, if the jury found the doctor 40% at fault and the patient 60% at fault, Dr. Turner would pay nothing because the threshold was not met. An Example of Assumption of Risk in a Medical Context Dr. Miller explains to Steve Cassidy the risks and possible bad outcomes for a surgery that is being contemplated. Steve decides to have the operation and, unfortunately, there is a bad outcome. As long as Dr. Miller wasn't...
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...1Q. I chose the following two professional medical insurance companies in Florida that provide malpractice insurance: Danna-Gracey Inc. and OROS Risk Solutions LLC. The headquarters of Danna-Gracey Inc. is located in Delray Beach, FL with other offices located in Jacksonville, Miami, Orlando and Pensacola. The services that are related to malpractice insurance are medical professional liability, allied health professional liability, healthcare facilities professional liability and vicarious liability. The company offers higher limits on malpractice coverage up to $ 3 Million or more upon a request, regulatory and investigatory coverage, and employment practices liability, cyber liability protection coverage and medical directorship coverage. The headquarters of OROS Risk Solution LLC is located in Orlando, FL. The law office offers the following services related to medical malpractice insurance: medical professional liability insurance, hospital professional liability insurance, fiduciary liability insurance, provider excess liability insurance, cyber liability...
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...Misfeasance and Nonfeasance [1] Special Applications of the Misfeasance Rule [a] Negligent Entrustment of Chattel [b] “Negligent Entrustment” and Alcohol [c] Spoliation of Evidence Chapter 2 Duty Despite Nonfeasance: The Special Relationship Exceptions 2.10 Duty Despite Nonfeasance 2.20 Duty Because of a Special Relationship between the Plaintiff and the Defendant 2.30 Duty to Control Another for the Benefit of the Plaintiff Chapter 3 No Duty Despite Misfeasance: Negligent Infliction of Emotional Distress and Negligent Infliction of Pure Economic Harm 3.10 No Duty Despite Misfeasance 3.20 Negligent Infliction of Emotional Distress [1] The Early Cases [2] Johnson v. Ruark Obstetrics and Its Progeny [3] Pre-Impact Fear of Dying [4] Fear of Contracting Medical Condition 3.30 Negligent Infliction of Pure...
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...Imagine waking up from a double mastectomy surgery to hear the great news that you do not have cancer, to only find out later that you never had cancer and that your medical chart got mixed up with another patient who does. This type of situation was caused by medical malpractice and negligence by the physician. In this paper key topic that will be discussed is the definition of negligence, lawsuits, standard of care, malpractice, malpractice cases, and the law. Negligence is the unintentional or omission of an act that a sensible person would not have done or looked over. A negligent person might also disregard their duties whereas a sensible person would not. There are different types of negligence which include misfeasance, malfeasance, and nonfeasance. Misfeasance is when a provider does the correct action incorrectly causing an injury. Malfeasance is when a provider performs an act that is deemed unlawful such as performing a procedure in a state where it is illegal. Nonfeasance is when a provider fails to perform duties that a reasonable person would have fulfilled. In order for a person or party to claim that negligence played a part in an injury, medical condition, or death it must be proven. There are multiple key factors that must occur such as a breach in the standard of care and negligence is responsible for the injury. Standard of care is the level of care that a patient can expect to receive. A breach in care is just the opposite the patient does not receive...
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...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 includes both an individual personal and professional level which involves the healthcare field. A person who commits a tort is called a tortfeasor which can be held accountable for his or her actions in court (Pozgar 2004). Tort law is an important part of the common law and evolves on a case-by-case basis. Therefore, tort law is still predominately court-created law but legislatures are playing an increasingly active role. One example of this is legislators placing limits on the amount of damages that can be awarded in certain types of court cases (Lipthrott 2005). Although state and federal statutes define some aspects of tort law, contemporary tort law remains defined by judicial decisions. Tort can be an excellent vehicle for viewing the nature of the common law, and for observing how a given body of law evolves daily. The basic objectives of tort law are preservation of peace between individual by providing a substitute for retaliation; culpability-to find fault for wrongdoing; deterrence-to discourage the wrongdoer (tort-feasor) from committing future torts; and compensation- to indemnify the injured person of wrongdoing. There are three basic categories of tort law: negligent tort, intentional tort, and torts where strict liability is assessed regardless of fault. There are two main differences between...
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...jury. One of the more heated issues facing the U.S. legal system during the past quarter century has been the call for reform of states' tort laws. health care providers and other organizations have sought to limit the amount of damages a plaintiff can receive for pain and suffering because they claim that large jury awards in Medical Malpractice cases cause premiums on medical insurance policies to rise, thus raising the overall costs of medical services. California took the lead in addressing concerns with rising medical costs when it enacted the Medical Injury Compensation Reform Act, Cal. Civ. Code § 3333.2 (1997). The act limits the recoverable amount for non-economic loss, such as pain and suffering, to $250,000 in actions based on professional Negligence against certain health care providers. Although the statute has been the subject of numerous court challenges, it remains the primary example of a state's efforts to curb medical costs through tort reform. Other states have sought to follow California's lead, though efforts to limit compensatory damages have met with considerable resistance. Opponents claim that because these limitations greatly restrict the ability of juries and courts to analyze the true...
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...over the body of any person who may have come to a violent death. 6. Deposition: statements made under oath by witnesses in a judicial proceeding. The testimony of a witness taken in writing, under oath or affirmation before a judicial officer interrogates or asks questions. 7. Emancipated Minor: the act by which one who was under the control or power of another is set free. 8. HIPAA Standards for Privacy of Individually Identifiable Health Information: protection for patients from medical decisions done by third parties. It regulates patient identity theft and insurance fraud cases. 9. Impeach: to bring charges of misconduct in office against a public official. 10. Medical Examiner: conducts an examination/autopsy of a body/bodies supposed to have died from unnatural causes and to investigate the cause and circumstances of such deaths/ 11. Medical Malpractice: improper or poor performance of a physician, dentist or other medical professionals. 12. Occupational Safety & Health Administration (OSHA): a federal agency that enforces occupational...
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...scope of privacy and security protections under HIPAA. True 5. Privileged communication is a legal concept designed to protect the communication between two parties. True Check Your Understanding 1.2 1. Ownership of a health record generated by a doctor on a patient belongs to the patient. False 2. A custodian of records is responsible for certifying that a record is what it purports to be. True 3. When a patient refuses treatment he or she is exercising the ethical principle of beneficence. False 4. In a malpractice case, a professional code of ethics may be used as a benchmark for what should be acceptable practice by a healthcare professional. True 5. The ethical principle of nonmaleficence refers to making sure rules are fairly and consistently applied to all. False CHAPTER 2 Check Your Understanding 2.1 1. Private law defines rights and duties between individuals and the government. False 2. Statutes are enacted by legislative bodies. True 3. Administrative law is created by court decisions. False 4. Persuasive authority occurs when a court looks to another court’s decision for guidance, even if it is not required to do so. True 5. Under the theory of stare decisis, a higher court must look to the decision of a lower court. False Check Your Understanding 2.2 1. Jurisdiction is a territory of legal control. True 2. The U.S. Congress is a...
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...Court Systems Sources of Law: 1) Constitution – 14th amendment (Due Process) 2) Statutes – Legislature ( Uniformed act is a proposed law – Statute) 3) Case Law - Court Case – Stare Decises “Let the decision stand.” (Precedent) 4) Rules and regulations of Administrative agencies - CMS, FDA, OSHA, FCC Hospital Organizations: 1) Government – VA 2) Sole Proprietorship – Full Liability 3) Partnership- limited liability 4) Limited Liability Corporation – Secretary of State 5) Corporation –Non for Profit – Hospitals (insured)\ 6) Corporation – For Profit – HCA, Shareholders Tax Corner “Ultra Vires” = Latin for “beyond powers.” Ex: Flower shop in the hospital. Torts = Personal Wrongs 4 Elements of Negligence: 1) Duty of a RPM ( Reasonable Prudent Man) Standard of Care 2) Breach – Violation of a Duty – Commission, Omission. 3) Proximate Cause – Forseenability 4) Damage/Injury = $ Defenses of negligence: 1) AOR- Assumption of Risk 2) Contributory 3) Comparative fault 4) SOL – Statutes of Limitation- Medical Malpractice Intentional Torts 1) Assault 2) Battery 3) Conversion 4) Defamation a. Libel – Written b. Slander – Voiced *Malice is a defense mechanism against intentional torts “Resipsa Loquitor” (The thing speaks for itself) 1) No facts 2) No contributory negligence 3) Instrumentality Exclusive Control 4) “But For” test Vicarious Liability Respondeat Superior – “Latin for “Let the Master Answer.” Who has the rights...
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...into her final rest on October 4, 1951. What made her demise different from other related death, is that her cancerous cells changed medical history. Henrietta cancer cells killed her, it metastasized throughout her...
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