Medical Liability in a Nutshell
Authors:
Boumil, Marcia Mobilia / Noble, Alice
Edition:
5th
Copyright Date:
2024
15 chapters
have results for health
Chapter 9 Review of Care and Reform of Liability 21 results (showing 5 best matches)
- For those who worry about the “malpractice problem,” doctors, lawyers, and health insurers all tend to blame each other, and some call for national reform of the tort system. It has been popular to blame predatory lawyers for exploiting unavoidable medical outcomes and fueling litigation against honest and hard-working doctors. Yet concern about health care quality and medical error are not unfounded. The recent national focus on health care quality has been accompanied by a recognition that many errors in health care are system related. Thus there is increasing talk about the need to hold the overall health care provider system more accountable for avoidable medical errors, rather than focusing “blame” primarily on the individual health care professional within that system.
- There is, however, more to the story. The cost of health care services, often driven by the technology available today has become increasingly expensive and beyond the reach of many Americans. Having developed expensive technology, the expectation is that it will be used. Medical science and healthcare policy do not always agree, or result in clear guidelines, about when and how much of these expensive diagnostics are indicated. There are also mistakes in the delivery of medical care. Since litigation against a healthcare provider has many
- Peer review privileges and their protections from discovery emphasize the inherent conflict between improving quality of care by candid review procedures and assisting an injured plaintiff in proving his or her claim of negligence. The law in this area continues to evolve. The goal of reducing costs of health care litigation is significant, particularly in an era where tort reform is hotly contested despite its effect on escalating costs of health care. However, peer review immunity is also under fire from disgruntled physicians who sometimes believe the peer review process can be both political and even retaliatory for purposes other than advancing quality of care. Over the past decade a few cases have even awarded damages for “malicious peer review” when sanctions were alleged to be unjustly imposed.
- A few caveats concerning “defensive medicine” are warranted. First, while the sum of $45.6 billion dollars seems hefty, Mello et al. qualify it by noting that the entire estimated $55.6 billion cost of the medical liability system, including defensive medicine costs, constitutes only 2.4 percent of total national spending on health care. Also, the authors describe the quality of the evidence supporting the cost estimate of defensive medicine as “low.” The available data for their review of the costs of defensive medicine were from studies conducted in the mid-1990’s.
- Also toward this end, Congress enacted the Health Care Quality Improvement Act (HCQIA) in 1986 “to improve the quality of medical care by encouraging physicians to identify and discipline physicians who are incompetent or who engage in unprofessional behavior.” ( Make Way: Why Arkansas and the States Should Narrow Health Care Peer Review Privileges for the Patient Safety and Quality Improvement Act of 2005, 62
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Chapter 7 Vicarious Liability of Hospitals and Physicians 28 results (showing 5 best matches)
- , hospitals have continued to expand the types of services they provide, and now employ a wide range of health professionals—and, most notably, an increasing number of physicians. Hospitals may be held vicariously liable for the negligence of these employees when acting within the scope of their employment. Hospitals, of course, are not the only health care entities that employ physicians. Physician practices and clinics may often employ physicians. Also, as the U.S. health care system continues to evolve, new out-patient entities have emerged, often providing care formerly sought only at acute-care hospitals. These entities, such as surgical centers, radiology centers, urgent care centers, etc., may employ physicians and other health care professionals. Health care staffing firms, a growing presence in the health care sector, may have agency relationships with health professionals. The theory of vicarious liability in general, and
- Moreover, the health insurance industry in the U.S. continues to evolve. Changing health care delivery systems may change the function of the physician within his or her practice, potentially leading to new sources of liability. For example, relatively new organizations, such as “Accountable Care Organizations” and “Patient-Centered Medical Homes” are currently expanding. These entities tend to place more responsibility on the primary care physician who is seen as the center of the patient’s health care “team.” Depending on how the physician interacts with other team members, such as nurses, allied health professionals, etc., opportunities for vicarious liability of the physician may increase.
- . Over the past few decades, however, a significant change has occurred in our health care system and physicians have responded by leaving traditional practices and choosing to be employed by a variety of health care entities, especially hospitals. Currently as many as seventy-six percent of physicians are employed by hospitals, health systems or other corporate entities, such as physician staffing companies, potentially increasing the role of
- At the same time, hospitals may experience increased liability as they continue to develop into larger “systems,” purchasing clinics, physician practices, and assorted free-standing health care entities, while expanding advertising to attract patients. Consider . In that case the Illinois Supreme Court noted that the apparent agency factors first applied to hospitals have been applied to entities outside of a hospital, including a Health Maintenance Organization (HMO), and to facilities owned by a hospital. The court declined to find that a Federally Qualified Health Center, which was not a party to the litigation, had sufficient ties to the defendant hospital to permit the Health Center’s employees to be considered apparent agents of the hospital. Significantly, the court did not find the type of activities, such as branding or the other marketing practices, that could create the appearance that the two separate entities were
- Villazon v. Prudential Health Care Plan, Inc., 843 So. 2d 842, 853 (Fla. 2003)
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Chapter 4 Informed Decision Making 39 results (showing 5 best matches)
- Congress passed the Health Insurance Portability and Accountability Act of 1996 (HIPAA) ( ) to “improve the Medicare program under title XVIII of the Social Security Act, the Medicaid program under title XIX of such Act, and the efficiency and effectiveness of the health care system, by encouraging the development of a health information system through the establishment of standards and requirements for the electronic transmission of certain health information.”
- Under the Health Information Technology for Economic and Clinical Health Act (HITECH) included in the American Recovery and Reinvestment Act of 2009, state attorneys general have the authority to enforce HIPAA as well. The HITECH Act was created to improve HIPAA Security and Privacy Rules. It gives states (through their attorneys general) the authority to sue health providers in federal court who violate patients’ privacy rights. ). In 2009, Connecticut Attorney General Richard Blumenthal brought suit against Health Net of Connecticut, Inc., for failing to secure private patient medical records and financial information for 446,000 Connecticut consumers. The suit also alleged that Health Net failed to notify affected consumers of the security breach. That case marked the first action brought by a state attorney general involving alleged violation of HIPAA.
- The modern doctrine of informed consent is a logical outgrowth of the common law concept of battery, which is defined as an unlawful, non-consensual touching. Battery theory has been used in the health care law field to impose liability on a health care provider who performs a procedure without first obtaining the informed consent of the patient. Over time, negligence theory has largely replaced common law battery as the basis for litigation. Most of the modern cases involving informed consent address the question of whether or not the physician provided sufficient information to the patient and obtained consent; these cases focus on the quantity and quality of that information. It is unusual, but not impossible, for a case to arise today in which no consent at all was obtained. Since procedures performed by physicians or other health care providers usually involve the touching of a patient’s body, the law protects the right of a person not to be touched without consent and...
- the patient, a Jehovah’s Witness, appointed a health care agent and signed a durable power of attorney stating that her religious beliefs required that she refuse all types of blood transfusions, even if necessary to save her life. Duran went into a coma and her husband petitioned the court to intervene. The husband was appointed guardian and consented to the transfusion. The patient died shortly thereafter. The patient’s health care agent appealed on public policy grounds to establish the individual’s right to refuse medical treatment especially where a health care agent had been appointed. The appeals court balanced Duran’s religious beliefs and her refusal of treatment against the state’s interest in protecting third parties and held that “absent evidence of overarching state interests, the patient’s clear and unequivocal wishes should generally be accepted.”
- of Health Care Organizations (today the Joint Commission) also required notification of patients about unanticipated adverse outcomes.
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Chapter 8 Liability of Health Care Institutions 59 results (showing 5 best matches)
- In 1974 Congress enacted ERISA, the Employee Retirement Income Security Act. As its name implies, the law was passed to respond to concern over increasing defaults among employee pension plans. However, Congress also included other employee-benefits within the law’s scope, including health benefit plans, a complex regulatory undertaking quite different from the regulation of pension plans. At the time of its passage, the health insurance industry was rapidly embracing a “managed care” model that integrates both the delivery of health care and the financing of health care. Over time, it became apparent that the regulatory approach of ERISA would not fit comfortably with the managed care design.
- The question of who should be held accountable for an inappropriate medical decision is of great interest to MCOs, health care providers, and patients. Given the complexity of the managed care system, in that it combines health care treatment decisions with health care administration and financing, it is unlikely that this question will be answered without legislative involvement. Although MCOs may be held accountable under state laws that are related to medical treatment, ERISA preempts practically all state law claims concerning plan administration decisions—and the latter category would include treatment denials based on an MCO’s decision that care was either unnecessary or not a covered benefit under the health plan—even if those decisions were determined to be wrong and injurious to the patient. It is this result that calls for Congress to consider ...MCOs now play in the finance and delivery of health care for so many Americans. While Congress was seriously considering...
- Baker v. Adventist Health, Inc., 260 F.3d 987 (9th Cir.2001)
- ERISA applies to any employee benefits plan (health, pension, etc.) if the plan is established or maintained by an employer engaged in commerce or by an employee organization representing employees engaged in commerce or in any industry or activity affecting commerce. Government plans, church plans, and foreign plans are among the plans that are statutorily exempt from ERISA. Currently, over 155 million individuals are covered by an ERISA-governed health plan.
- ., S. Rosenbaum et al., Case studies at Denver Health: ‘Patient Dumping’ in the emergency department despite EMTALA, the law that banned it,
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Index 19 results (showing 5 best matches)
- HEALTH INFORMATION TECHNOLOGY FOR ECONOMIC AND CLINICAL HEALTH ACT (HITECH)
- Health Information Technology for Economic and Clinical Health (
- Hospitals and Other Health Care Institutions, this index
- Liability of health care institutions, corporate liability of managed care organizations, 389
- Liability of health care institutions, hospital liability for corporate negligence, 343–344, 349
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Chapter 3 Intentional Torts 15 results (showing 5 best matches)
- An increasing number of cases in various contexts have been brought by medical malpractice plaintiffs who also allege that their substandard care resulted violation of their civil rights. There is a plethora of data supporting the proposition that racial and ethnic minorities receive lower quality health care and achieve poorer health outcomes than non-minority populations.
- the Plaintiff’s husband hired a psychiatrist as an expert witness in a contentious divorce matter to provide testimony regarding his wife’s mental health. The expert did not conduct an examination of the wife, nor did he ever even meet her. Nevertheless he provided a written report to the court opining that the wife suffered from significant mental health issues including a personality disorder. The wife thereafter accused the expert of medical malpractice in that he issued a report without ever examining her, causing negligent and intentional infliction of emotional distress as a consequence.
- Despite the potential for § 1557 to play a major role in addressing discrimination in health care and, at the same time, broadening health care access, obstacles stand in its way. First, the language of the statute, in particular the cross-referencing of statutes rather than providing guidance on what specifically constitutes discrimination under the statute, as well as the seeming lack of a uniform enforcement mechanism, has led courts to interpret § 1557 in different ways. The key question left unanswered by the statute is the extent to which the cross-referenced provisions provide a unitary standard of healthcare discrimination, or four separate standards, along with four different enforcement mechanisms. The court in
- An increasing number of plaintiffs have brought malpractice actions against practitioners, notably mental health professionals, for exploiting the professional relationship by engaging in sexual activity during, after, or as a part of, treatment. It is consistently held, particularly in the context of mental health treatment, that it is completely improper and unethical for a practitioner to suggest, agree, or in any other way participate in a sexual relationship with a patient.
- , is the first federal civil rights statute to ban discrimination on the basis of race, color, national origin, sex, age, or disability in all health plans and activities that receive federal financial assistance (FFA). The statute itself does not describe the unlawful discrimination it proscribes, but cross-references existing federal civil rights laws that prohibit discrimination on the basis of (§ 504 of the Rehabilitation Act of 1973). Section 1557 also adopts the enforcement mechanisms under each cross-referenced statute. Those receiving FFA include, among others, health insurers or third-party administrators that receive subsidies or other funding in the ACA’s insurance exchange, hospitals, physicians, and others who receive Medicaid or Medicare payments, including pharmacies dispensing Part D drugs. While the statute broadly includes recipients of any FFA, the
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Chapter 1 Establishing the Professional Relationship 25 results (showing 5 best matches)
- Today violent patients are found in every department of the health care system and, indeed, outside the health care system. Mass shootings are the most publicized aspect of dangerousness, but they are by no means the only one. Mental health and
- Psychiatrists and other mental health professionals cannot predict who may commit acts of violence. Even with today’s state-of-the-art evaluation instruments, risk assessment is not precise. As for the prediction of catastrophic events such as shootings in the health care setting and beyond, the reliability of predictions is even less certain. No one knows who will cause unprovoked tragedy. Nevertheless, there are signs apparent to a trained professional that raise concern about a person’s propensity for violence, and investigating those signs and conducting a threat assessment is part of the mental health professional’s standard of
- The widespread use of the electronic health record (“EHR”), a/k/a electronic medical records (“EMR”), potentially alters the exposure of medical professionals to medical malpractice suits. In some respects the EHR flags possible errors and suggests treatment options. However, the sheer amount of information contained in an electronic health record—all at a physician’s fingertips—also increases the likelihood that a physician or other medical professional could overlook a critical piece of health information. It will be up to the courts to decide whether, pursuant to a certain set of facts, physicians should be held accountable for harm that might have been averted with a more thorough review of a patient’s medical record.
- In general, the standard of care in a malpractice case requires that a psychiatrist exercise the degree of skill, care, and diligence of an ordinary or reasonably prudent psychiatrist practicing under similar circumstances. Health care workers are not trained or skilled in law enforcement, nor do they have a duty to put themselves in harm’s way to prevent acts of violence. Whatever the solution may be to societal danger, the role of mental health and other providers in predicting danger is minimal in relationship to the actual danger.
- HEALTH RECORDS
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Preface 1 result
- The fifth edition of this text builds on the previous efforts to help support law, business and health administration program students and others who would like to acquaint themselves with the key concepts of medical liability. We have maintained the basic structure of the first six chapters which provide the reader with the core concepts and issues that relate to the legal aspects of clinical care. In this edition, beyond clinician practice we also summarize the medical liability issues of the institutional direct providers of care (‘‘hospitals’’) together with the organizations that combine elements of both health care financing and patient care (‘‘managed care organizations’’) because we feel it would be useful to the reader to think about health care organizations and their complexity as they relate to institutional decisions that impact ...health of patients. The final chapters reorganize vicarious liability of hospitals and add new material on the direct corporate liability of...
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Chapter 6 Affirmative Defenses, Limitations and Immunities 15 results (showing 5 best matches)
- The federal government, anticipating litigation arising out of health care services delivered during the COVID-19 crisis
- Good Samaritan laws have been enacted in most jurisdictions to induce physicians and others to render emergency care under circumstances in which they have no legal obligation to act. This includes medical emergencies that occur in areas outside of the traditional health care setting, (e.g., on the street, in a restaurant, etc.) and sometimes those that occur inside a health care facility at a time or place that the attending physician is not available. In the usual
- The varying forms of Good Samaritan legislation represent the efforts of each jurisdiction to balance two competing interests: compensating those injured through medical negligence and encouraging physicians and other health professionals to provide emergency medical care under circumstances where there is otherwise no compulsion to do so. The latter interest is promoted by Good Samaritan legislation.
- Further, the Public Readiness and Emergency Preparedness Act (PREP Act) was enacted by Congress to give broad immunity to health care providers who administer or used various antiviral and other drugs vaccines, biologics and devices (such as testing and respiratory aids) to diagnose, prevent or treat symptoms or transmission Covid-19.
- Although often used interchangeably, the terms sovereign immunity and governmental immunity are not synonymous. Sovereign immunity refers to state government (and divisions thereof) such as state agencies, boards, universities and health care facilities. Sovereign immunity provides protection from liability and damages and also from suit. Governmental immunity protects the subdivisions of the state (such as its counties and school districts). As extension of the state’s sovereign immunity, governmental immunity, protects the state and its agencies and its officials from being sued. As a practical matter these concepts often function as though they were the same.
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Chapter 5 Causation and Damages 15 results (showing 5 best matches)
- Cofield v. Park West Health Sys. et al., 2019 WL 689838 (Md.Ct.Spec.App.2019)
- With increasing frequency, claims are being lodged against health care professionals for the self-inflicted injuries of patients who prove to be a danger to themselves. . Physicians who regularly attend to psychiatric patients are often required to assess the dangerousness of the patient. In so doing, often the only choice is between involuntarily confining a patient who may pose a danger to himself and incurring the risk to self and others that accompanies freedom. Commitment decisions are made by a trained mental health diagnostician on the basis of skill and experience based only upon the available information. A physician is not negligent merely because his judgment yields a bad result.
- Providence Health Ctr. v. Dowell, 262 S.W.3d 324 (Tex.2008)
- The law of medical malpractice developed rapidly in the 1970’s and 1980’s, with increases in both the theories of liability and the number of cases. Serious attention was required to reform the system, primarily to bring down the high cost of health care, health insurance and malpractice premiums. Malpractice reform will be discussed in greater detail in Chapter 9. Some reforms include statutory ceilings on the amount of damages that can be awarded in a particular case, as well as limitations on the contingent fees that lawyers can collect for extraordinary verdicts.
- was injured in a car accident by an employee of the defendant and was awarded as damages the full “billed” cost of her medical expenses. In fact, those expenses were paid by her health insurance company. The California Supreme Court denied the “windfall” and held
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Outline 4 results
Table of Cases 59 results (showing 5 best matches)
Chapter 2 Negligence-Based Claims 5 results
- A related area involves those practitioners who provide services in the allied health professions such as nursing, psychology, and other fields. The standard of care generally expected of these professionals is that which would be expected of the average qualified practitioner working in that field. If a practitioner holds himself out as possessing greater knowledge or expertise, he is likely to be held to the higher standard. In
- Andreu v. Secretary of Health and Human Servs., 569 F.3d 1367 (Fed.Cir.2009)
- technologies, and superior facilities. Second, use of the locality rule was thought to create an incentive for physicians to practice in rural areas where there was often less opportunity to interact with and learn from colleagues, fewer patients to treat, and fewer patients with health insurance. Specialization, in particular, was more difficult in rural areas because the smaller patient population made it more difficult to support a practice.
- Cowley v. Virtua Health System, 242 N.J. 1 (N.J.2020)
- , the plaintiff underwent an appendectomy, only to later experience sharp pain in his right shoulder. He subsequently suffered atrophy and eventual paralysis of the shoulder muscles. The patient sued all of the health care providers that were present during the procedure, including the anesthesiologist, the primary and consulting surgeons, as well as a number of other hospital employees, including the owner of the hospital. Although it was likely that at least some of the defendants were not negligent, the purpose of the
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- Publication Date: March 26th, 2024
- ISBN: 9798887861494
- Subject: Health Law
- Series: Nutshells
- Type: Overviews
- Description: Reliable source on medical liability law. Written by experts in the field, this Nutshell offers insight on establishing professional relationships and examines negligence-based claims, intentional torts, causation, damages, affirmative defenses, limitations, immunities, and liabilities. It also provides an overview of medical care liability issues affecting hospitals and managed care organizations.
