Term
| Basis of Hospital Liability |
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Definition
Vicarious/Indirect Liability
Direct Corporate Liability |
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Term
| Sources of Hospital Liability Immunity |
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Definition
Sovereign Immunity
Charitable Immunity
Independent Contractor |
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Term
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Definition
| Government - has eroded over time |
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Term
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Definition
| Immune due to charitable care - no longer exists |
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Term
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Definition
| Hospital not responsible because physician etc was a contracted individual |
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Term
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Definition
Indirect legal responsibility for acts of an agent or employee
Respondeat superior |
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Term
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Definition
Was a tort committed?
Was the tortfeasor and agent/employee of the defendant hospital?
Was the tortfeasor acting within the scopre of agent/employee duties? |
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Term
| Employee/Agent v. Independent Contractor |
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Definition
Who controls work plan?
Who controls work schedule?
Is the person paid? |
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Term
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Definition
Holds itself out a provider of service
Governing board has power of appointment/revoke privileges
Oversees quality of care issues
Patients have no notice of IC status
Patients rely on hospital to furnish physicians |
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Definition
| Surgeon should be in control of all others under his command (less common) |
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Term
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Definition
liability of the corporations itself to maintain a qualified medical staff
maintenance of buildings and grounds
maintenance and selection of hospital equipment |
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Term
| Violation of Rules (Bylaws and regs) = ? |
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Definition
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Term
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Definition
| Individual suffers all the losses, enjoys all the gains |
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Term
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Definition
Two individuals sharing losses, profits
not separate legal entity
not taxed on profits |
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Term
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Definition
some partners can have full powers
limited liability partnership = certificate of partnership who has responsibility for limited partnership |
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Term
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Definition
| partnership created by contract for a specific purpose, liability unlimited |
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Term
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Definition
created by law, authorized by statute
Separate legal identity
created by filing articles of incorporation
personal liability limited |
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Term
| Advantages of corporations |
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Definition
Limited liability
continuity of existence
free transfer of ownership interests
corporation separate taxable entity
ability to raise outside capital |
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Term
| Corporate Practice of Medicine |
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Definition
Prohibit business corps from practicing medicine or employing docs to provide medical services
exceptions are hospitals and professional corps |
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Term
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Definition
designated by statute or charter
Power to buy, lease or other wise acquire property
Power to make contracts |
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Term
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Definition
| powers reasonably necessary to carry out express powers |
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Term
| 4 functions of governing boards |
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Definition
Develop policy and strategic plans
Appoint senior administration and medical staff members
Delineate clinical privileges
Oversee professional performance of both administrators and medical staff |
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Term
| Duties of governing board |
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Definition
Fiduciary Duty
Duty of Loyalty
Duty of Care/Duty of Responsibility |
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Term
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Definition
| must act for the benefits of others |
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Term
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Definition
No conflict of interest
No improper self benefit
Cannot usurp corporate opportunity
individuals must put the interest of the corporation above all self |
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Term
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Definition
| obedience to the mission of the corporation |
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Term
| Duty of Care/Responsbility |
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Definition
Reasonable care, skill and diligence
Act in good faith
Fulfill membership functions personally
Preservation of corporate assets
Duty to pay taxes owed
Basic management duties |
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Term
| Who can pierce the corporate veil? |
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Definition
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Term
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Definition
| Two or more organizations combine and one organization is the survivor |
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Term
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Definition
| Two or more combine to create a new legal entity |
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Term
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Definition
| Two or more corporations come together for a specified purpose for a limited duration. Parties owe a fiduciary duty to one another, and profits and losses are shared according to agreement |
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Term
| required elements of negligence |
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Definition
A duty of care
Breach of the duty
Causation
Damages |
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Term
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Definition
First it must be proved that a duty was owed to the person harmed.
Second, the scope of that duty, sometimes called the standard of care must be proved. |
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Term
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Definition
| Standard of care is measured by the average physician in the same practice area |
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Term
| Reasonable person standard |
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Definition
| reasonably prudent person in similar circumstances |
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Term
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Definition
Established by -
expert testimony
common sense
written guidelines
res ipsa loquitor |
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Term
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Definition
credentialed – familiar with this type of practice in this locality
Must be profesionally qualified – knowledge of the standard of practice need not be the same kind of doctor, but must know the standard of care |
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Term
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Definition
| issues which judge can determine without the assistance of an expert |
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Term
| Examples of written standards |
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Definition
licensure regulations
institutional rules
accreditation standards
clinical guidelines
reference books |
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Term
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Definition
Accident is such that it normally would not occur without someone's negligence
The defendant had control over the apparent cause of the accident
The plaintiff could not have contributed to the accident |
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Term
| individual harmed by the violation need only prove... (res ipsa loquitor) |
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Definition
1. that the law was intended to protect people like himself
2. The law was violated
3. The injury is the type that the law was trying to prevent
4. The injury was caused by the violation |
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Term
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Definition
actual or compensatory
pain and suffering
loss of chance |
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Term
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Definition
| to repay out of pocket expenses to the plaintiff |
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Term
| punitive damages (pain and suffering) |
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Definition
| intended to punish the tort feasor |
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Term
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Definition
Assumption of risk
Contributory and comparative negligence
Contracts
Release
Good Samaritan Laws
Workers comp
governmental immunity
statute of limitations |
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Term
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Definition
| people knowingly perceive a risk but expose themselves to it or remain in a position of danger |
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Term
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Definition
| if the patient failed to act a s a responsibly prudent person would be expected to act, and that failure contributed to the injury |
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Term
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Definition
| attempting to compensate the injured party - part negligence of defendant part plaintiff |
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Term
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Definition
Defamation
Abuse of process
Malicious prosecution |
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Term
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Definition
| requires the showing that the plaintiff maliciously used the legal system for an unlawful purpose |
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Term
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Definition
| motive was ill will, no belief that they could actually win |
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Term
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Definition
Arbitration
No-fault system
Risk Management |
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Term
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Definition
Was there an agreement
What did each party commit to do
Did either party - or both - fail to do what he or she promised
If yes, how do you measure the cost to the non-breaching party |
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Term
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Definition
| Agreements that the law will enforce - oral or written |
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Term
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Definition
| The promises are communicated by language, either oral or written |
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Term
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Definition
| The conduct of the parties indicates that they consented to be bound |
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Term
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Definition
| A person accepts an offer by performing a requested act. The terms of the offer must clearly indicate that an act is required for acceptance |
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Term
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Definition
| A person accepts an offer by promising to do the requested act |
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Term
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Definition
| No minors - no mentally incompetent |
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Term
| When does a contract exist? |
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Definition
Offer
Consideration
Acceptance
Mutuality |
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Term
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Definition
| One of the parties made a promise to do or refrain from doing some specified action in the future |
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Term
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Definition
Something of value was promised in exchange for the specified action or nonaction
value that induces the parties to enter into the contract |
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Term
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Definition
| The offer was accepted unambiguously. Acceptance may be expressed through words, deeds or performance as called for in the contract |
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Term
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Definition
Meeting of the minds
parties understood and agreed to the basic substance and terms of the contract |
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Term
| Contract Questions for the Judge |
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Definition
1. Did a contract exist?
2. If so, what did the contract require of each of the parties?
3. Was the contract modified at any point?
4. Did the claimed breach of contract occur?
5. If so, was the breach material to the contract?
6. Does the breaching party have a legal defense to enforcement of the contract?
7. What damages were caused by the breach? |
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Term
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Definition
| other party receives something substantially different from what the contract specified |
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Term
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Definition
the breaching party failed to perform some aspect of the contract but the other party still receives the item or service specified in the contract
Can still recover damages |
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Term
| defenses against breach of contract claim? |
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Definition
Enforcement of the contract would violate public policy
Performance of the contract has become impossible or become frustrated
Contract is illegal
Lacks consideration
Obtained by fraud
contains a mutual mistake
contains a unilateral mistake
one or both parties lacked capacity to make contract |
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Term
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Definition
| non-breaching party is obligated to mitigate, or minimize, the amount of damages to the extent reasonable |
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Term
| doctor/patient relationship termination |
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Definition
Mutual
Patient withdrawal
Physician withdrawl |
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Term
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Definition
| physician notifies a patient that he or she is withdrawing form the patient's case but fails to give the patient enough time to get another physician |
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Term
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Definition
| implied by conduct - such as a doctor admits but never returns to see patient |
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Term
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Definition
sufficient time is given
may limit practice geographically
may find another appropriately trained substitute |
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Term
| Breach of Contract - doctor/patient |
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Definition
failure to preform contracted service with reasonable care and skill
negligence AND breach of contract |
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Term
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Definition
Failure to provide a promised outcome
malpractice AND breach of warranty |
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Term
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Definition
A civil wrong
person intends to do the wrong
intends no harm but fails to act as a reasonable person would
act is wrongful but not because of intent - just because of its inherent high risk |
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Term
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Definition
assault and battery
Defamation
false imprisonment
invasion of privacy
wrongful disclosure of confidential information
misrepresentation
outrage - intentional inflicts of emotional distress |
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Term
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Definition
| the law government and its relationships with the individuals and business |
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Term
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Definition
| rights and duties between personal and private business |
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Term
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Definition
contract law
tort law
governmental statutes and regs |
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Term
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Definition
| sanctions for behavior injurious to public order |
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Term
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Definition
constitution
statutes
administrative law
judicial decisions (common law) |
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Term
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Definition
The complaint
the answer
discovery
trial |
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Term
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Definition
losing party = appellant
original winning party = appellee |
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Term
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Definition
| local officials can seize the losers property and have the property sold to satisfy the judgement |
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Term
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Definition
| when a 3rd party pays the winner - such as percentage of paycheck sent to winner |
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