Tort Law
Unit 2
Negligence
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Conduct lacking in due care
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Carelessness
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Deviation from standard of care that a reasonable person
would use in a particular set of circumstances
Doing something that the reasonable and prudent person
would not do
Applies to professionals as well as other non professionals
Malpractice
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Tortfeasor (person committing civil wrong) must be a
professional
Professional misconduct
Unreasonable lack of skill or fidelity in professional or
judiciary duties
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Evil practice
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Illegal or immoral conduct
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Malpractice Continued
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Results in injury or unnecessary suffering or death of
patient
Proceeds from ignorance, carelessness, want of
professional skill, disregard of established rules and
principles, neglect, or a malicious or criminal intent
Establishment of Liability
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Duty owed the patient: reliance relationship, care owed of
reasonably prudent nurse judged by expert testimony,
published standards, and common sense
Breach of the duty owed the patient - deviation from
standard care
Foreseeability: what reasonably could be expected
Establishment of Liability Continued
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Causation: Cause in fact - breach of duty owed caused
injury; proximate cause - how far liability extends for
consequences of action
Injury - physical, emotional, financial
Damages: General damages inherent in case; special
damages such as losses, expenses; emotional damage;
punitive damage
Doctrine of Res Ipsa Loquitor Let the thing speak for itself
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Doctrine allows a negligence cause of action without all
six elements
Must prove causation, injury, damages
Used in cases where for example patient was
unconscious in surgery
Locality Rule
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Professional viewed by a prevailing community standard
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Has been abolished in most cases
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Judicial Law: Idaho Supreme Court Buck v. St. Clair (1981)
Locality Rule Abolished
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Availability of mass media
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Professional organizations and standards
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Standards for accreditation of hospitals
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Intentional Torts
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Tort: civil wrong committed against a person or person’s
property
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Not based on contracts
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Three elements:
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Volitional act by the defendant (not omission)
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Intent to bring about consequences or appear to have
intended to bring about consequences
Intentional Torts Continued
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Causation - act must be substantial factor in bringing
about injury or consequences (damages need not be
incurred)
Examples of Torts
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Intentional torts: assault, battery, false imprisonment,
conversion of property
Quasi-intentional torts: defamation of character, invasion
of privacy
Assault
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Apprehension of unwarranted touching
Battery
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Harmful or unwarranted contact with the plaintiff-patient
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Single touch sufficient for tort
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No harm or injury need occur to the patient
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Patient need not be aware
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Causation through direct or indirect contactexample: nurse dropping a tray
Battery Continued
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Unwarranted touching of patient belongings
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Lack of consent most common cause
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False Imprisonment
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Unjustifiable detention of person without legal warrant to
confine person
Must be knowledge of imprisonment by patient for it to
occur
Incompetent, mentally ill, or persons posing a threat to
society may be detained against will
Conversion of Property
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Interference with right to possession of patient’s property
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Need to have adequate justification of action
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Intentional Infliction of
Emotional Distress
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Professional conduct goes beyond that tolerated by
society
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Conduct calculated to cause mental distress
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Conduct causes mental distress
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Invasion of Privacy
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Unreasonable unwarranted interference with individual's
solitude
Patient has right against 1) Appropriation of plaintiff’s
name or picture for defendant’s sole advantage; 2)
Intrusion by defendant upon patient’s seclusion or affairs;
3) Publication by the defendant of facts that place the
patient in a false light; 4) Public disclosure of private facts
about the patient by hospital staff or medical personnel
Defamation
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Comprised of slander (oral) and libel (written)
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Wrongful injury to another’s reputation
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Five elements
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Defamatory language that adversely affects reputation
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Defamatory language concerning living person
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Defamation Continued
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Publication to a third party or several persons
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Damage to person’s reputation
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Fault on part of defendant in writing or telling another the
defamatory language
Defenses against intentional torts
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Consent or implied by law through:
prevention of loss of life or limb; person incapable; no
reasonable reason to believe consent would not be given;
reasonable person in similar circumstances would give
consent
Truth in defamation cases
Defenses Against Torts Continued
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Privilege - to protect public and private interests.
Example - recommendation from former to prospective
employer; appropriate channels used; truthful; objective
terms
Disclosure Statutes: reporting of information for health
reasons
Intentional torts mitigated by retraction, if provoked
Defenses to Nonintentional Torts
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Release: only compensated for negative action
Contributory negligence: patient contributes to negative
action
Assumption of risk: Plaintiff understood and is partially
responsible
Immunity Statutes: Example - Good Samaritan Law
Statute of Limitation
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In most states, 2 to 4 years, or with a child, until age of
maturity
In North Carolina, 3 years for most cases
Informed Consent
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Expressed or implied; written or oral, complete or partial
Major exceptions: Emergency , therapeutic privilege,
patient waiver, prior patient knowledge or common
knowledge
Other exceptions: preservation of life, protection of
minors, prevention of self destruction, maintenance of
ethical integrity, protection of public’s health