?Healthcare Policy, Law, and Ethics Discussion Wk 2

Healthcare Policy, Law, and Ethics Discussion “Application of Tort Law in Health Care Project Management Protocols” Please respond to the following: *From the scenario, analyze the development of health care project management predicated on tort law. Ascertain the major ways in which tort law provides solutions to health care concerns, in light of the complexities of 21st Century health care administration roles.Scenario Script Attached.Analyze the development of tort law from the concept and degree of negligence to the application of the law to strict / product liability. Evaluate the success of tort law in providing solutions to 21st Century health care disputes. Rationalize your answer by using any applicable legal precedents. ***This is a discussion, NOT a paper. Need 2 strong paragraphs and references.***
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Week 2 Scenario Script: Project Management – Tort Law in Health Care
Slide #
Scene/Interaction
Narration
Slide 1
Scene 1
Professor Charles enters
classroom and introduces the
topics for today’s lesson and
begins the lecture.
Prof Charles: Hello everyone….welcome back
to class. Today, we are going to discuss tort law
with an emphasis on negligence in healthcare
settings.
The basic objectives of tort law are as follows:
Preservation of peace between individuals by
providing a substitute for retaliation;
Culpability (to find fault for wrong doing);
Deterrence (to discourage the wrongdoer “tortfeasor” from committing future wrongful
doing); and
Compensation (to identify the persons injured).
The three basic categories of tort law are:
Negligent torts;
Intentional torts (e.g., assault, battery, false
imprisonment, invasion of privacy, infliction of
mental distress; and
Strict liability, which is applied when the
activity regardless of fault, intentions or
negligence, is so dangerous to others that public
policy demands absolute responsibility on the
part of the wrongdoer, for example – products
liability.
Let’s first discuss negligence which is a tort or
personal wrong. It is the unintentional
commission or omission of an act that a
reasonably prudent person would or would not
do under any given circumstances. What are
some examples?
Casey: Administering the wrong medication,
performing the surgical procedure on the wrong
patient, performing the wrong surgical
procedure, to name a few…
Donald: I would agree, but I would add failure
to order diagnostic tests, failure to assess a
patient’s nutritional needs, and failure to
conduct a thorough history and physical
1
examination.
Prof. Charles: Absolutely… what are some
forms of negligence?
Casey: I would say they are malfeasance,
misfeasance, and misfeasance.
Prof. Charles: Excellent Casey. What are the
basic two degrees of negligence?
Donald: They are ordinary negligence, the
failure to do under the circumstances, what a
reasonably prudent person would or would not
do and gross negligence which is intentional or
wanton omission of care that would be proper to
provide, or the doing of that which would be
improper to do.
Prof. Charles: Great job, Donald! Now let’s
take a closer look at the elements of negligence.
Slide 2
Check Your Understanding
Which of the following is an
element of negligence?
A. Beyond a
reasonable doubt
B. Duty to care
C. Death
Correct Feedback:
B. Duty to care. There must be an
obligation to conform to a
recognized standard of care.
Incorrect Feedback:
A. Beyond a reasonable doubt
2
C. Death
Slide 3
Scene 2
Discussion between Prof Charles
and students.
Prof. Charles: A duty of care carries with it a
corresponding responsibility not only to provide
care, but also to provide it in an acceptable
manner.
The general standard of care is that which a
reasonable prudent person is expected to do in a
given situation. Deviation from the standard of
care will constitute negligence if there are
resulting damages or injuries.
Some standards of care are influenced by
medical ethics.
Casey: Professor Charles…can you give us an
example?
Prof. Charles: Certainly. A decision concerning
termination of resuscitation efforts is an area in
which the standard of care includes an ethical
component. Under these circumstances it
occasionally may be appropriate for a medical
expert to testify about the ethical aspects
underlying the professional standard of care. In
Neade v. Portes, a physician expert was allowed
to base an opinion on breach of standard of care
on violation of an ethical standard established
by the American Medical Association.
Most states hold those with special skills (e.g.,
physicians, nurses, dentists) to a higher standard
3
of care that is reasonable in light of their special
abilities and knowledge.
Donald (interrupts): Just to be clear, are
physician specialists held to a higher standard
than non-specialist physicians?
Prof. Charles: Yes, generally the reliance of the
public on the skills of a specialist and the wealth
and sources of his or her knowledge is not
limited to the geographical area in which he or
she practices. Rather, his or her knowledge is a
specialty; a person specializes to keep abreast.
Traditionally, in determining how a reasonably
prudent person should perform in a given
situation, the courts often rely on the sworn
testimony of an expert witness as to the
standard of care required in the same or similar
communities.
Casey: I am still not quite clear on this idea of
the expert witness.
Prof. Charles: Sure….Expert testimony is
necessary when the jury is not trained or
qualified to determine what the reasonably
prudent professional’s standard of care would
be under similar circumstances.
Slide 4
Check Your Understanding
All U.S. hospitals must meet a
standard of care which is
_______ as follows:
A. Nationwide
B. Local
Correct Feedback:
A. Nationwide is correct.
There are no degrees of care
4
in fixing responsibility for
negligence, but the standard is
always that care which a
prudent person should used
under like circumstances.
Incorrect Feedback:
B. The movement in the
courts is away from the
standard of care practiced
locally to reliance on applying
an industry or national
standard. The standard is
based on the practice of
competent members of his or
her profession across the
nation.
Slide 5
Check Your Understanding
Foreseeability is the
reasonable anticipation that
harm or injury is likely to
result from a commission or
omission of an act. The test
for foreseeability is whether
one of__________:
A. Intuition
B. Belief
C. Ordinary prudence and
intelligence
D. Remote possibility
Correct Feedback:
C. There is no expectation
5
that a person can guard
against events that cannot be
reasonably be foreseen or that
are so unlikely to occur that
they would be disregarded.
Incorrect Feedback:
A. Incorrect. Please try again.
Foreseeability is based on
factual considerations and
reasonableness, not gut
feelings.
B. Incorrect. Please try again.
Remember, it is based on
reasonable prudent foresight,
not a belief system.
D. Incorrect. Please try again.
Remember, it involves that
which is probable and likely
to happen, not that which is
only remotely possible.
Slide 6
Scene 3
Discussion of Strict/Products
Liability
Prof. Charles: Now let’s discuss strict/
products liability.
Can anyone give a definition of the doctrine of
strict/product liability?
Casey: I think I can. Strict/product liability is a
legal doctrine that makes some persons or entity
responsible for damages caused by their actions
or products, regardless of “fault”.
Prof. Charles: Very good, Casey!
Donald: Prof. Charles…Say a demolition
company destroys a building in the city and
practices safety and diligence and some citizens
are injured. Is the blasting company liable?
Prof. Charles: Donald, that is a great question.
6
It could be liable for injuries suffered. Strict
liability also applies to cases involving
disposable medical supplies, equipment, and
drugs.
Casey: So is it safe to say products liability is
the accountability of a manufacturer, seller, or
medical supply company for injuries sustained
because of a medical defect in a product?
Prof. Charles: Yes, Casey….I think that is a
pretty good distinction.
Casey: I think that the discussion on products
liability and has really clarified some questions
for me.
Prof. Charles: Well, that is a great lead-in to
the next topic, which is negligence, breach of
warranty, and strict liability.
Slide 7
Scene 4
Discussion on express warranties
and implied warranties.
Prof. Charles: The doctrine of strict/products
liability has been promulgated into a model law
for states to voluntarily enact called the Model
of Uniform Products Liability Act. The three
types of product defects, and defects in
marketing (for example – providing improper
instructions and making exaggerated claims
about a product’s use).
If a hospital negligently uses a product and
injures a patient, the manufacturer is usually not
liable for injuries unless the instructions for use
are incorrect. Because manufacturers are liable
for injuries that result from unsafe product
design, they generally provide detailed safety
instructions to the users of their products.
What do you think is a breach of warranty?
Casey: I would say a warranty is a
manufacturer’s guarantee concerning goods or
services provided by a seller or to a buyer.
Prof. Charles: Exactly…It is so important to
7
remember that nearly everything purchased is
covered by a warranty. To recover under a cause
of action based on a breach of warranty theory,
the plaintiff must establish whether there was an
express or implied warranty.
Donald: Professor, in our discussion, you have
provided us with a significant amount of
information about strict/products liability.
I would like to know what is an implied
warranty and an express warranty?
Prof. Charles: An implied warranty is a
guarantee of a product’s quality that is not
expressed in a purchase contract. An implied
warranty assumes that the item sold can
perform the function for which it was sold.
Express warranty is a specific promise or
affirmation made by the seller to the buyer, such
as “X” drug is not subject to addiction. If the
product fails to perform as advertised, it is a
breach of express warranty.
Casey: So, if a food product injures a buyer
through contamination, is that a breach of
implied or express warranty?
Prof. Charles: Usually an implied warranty.
These cases are usually not based on negligence
nor on a breach of the usual implied warranty. It
is based on the broad principle of the public
policy to protect human health and life.
Slide 8
Scene 5
Prof Charles: We are just about out of time.
Let’s go over what we learned in this lesson.
Summary
Picture of Casey and Donald as
they speak.
Today, our discussion focused on tort law with
an emphasis on negligence in healthcare
settings. A tort is a civil wrong, other than a
breach of contract, committed against a person
or property (real or personal) for which a court
provides a remedy in the form of an action for
8
damages. Tort actions touch on individual both
on a personal and a professional level, which is
why those involved in the healthcare field
should be armed with the knowledge necessary
to make them aware of their rights and
responsibilities.
Before we adjourn, are there any questions?
Donald: I have no questions; I think that the
information was clearly presented, Professor.
Casey: No questions for me…
.
Professor Charles: Well, if there are no further
questions, I will say good evening and I will see
you next time.
9

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