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Was there a public policy exception to the Missouri employment-at-will doctrine?

Legal Aspects of Health Care
Administration
THIRTEENTH EDITION

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George D. Pozgar, MBA, CHE, D.Litt.
Author, Speaker, Consultant
Gp Health Care
Annapolis, Maryland

Legal Review
Nina M. Santucci, MSCJ, JD
JONES & BARTLETT
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Library of Congress Cataloging-in-Publication Data
Names: Pozgar, George D., author.
Title: Legal aspects of health care administration / George D. Pozgar, MBA,
CHE, D.Litt.
Description: Thirteenth edition. | Burlington, MA: Jones & Bartlett Learning,
[2019] | Includes bibliographical references and index.
Identifiers: LCCN 2018002863 | ISBN 9781284127171 (casebound)
Subjects: LCSH: Health services administration—Law and legislation—United
States. | Medical laws and legislation—United States. | Medical personnel—
Malpractice—United States. | BISAC: BUSINESS & ECONOMICS /
Information Management.
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6048
Printed in the United States of America
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https://lccn.loc.gov/2018002863

I dedicate this book to Denise Mirafuentes.
Your life was an inspiration.
Your love for family, friends, caregivers, and the many lives you have touched never failed.
Your unwavering faith in God and the challenges you faced have forever changed the lives
of so many.
Your life is a testimony to goodness, kindness, and compassion.
Though the thoughts I wish to impart continue to swirl in my mind, words alone will never
suffice.
So I leave you with this my dear friend,
Your signature phrase to “Live, Laugh, and Love” describes you well.
“The best and most beautiful things in the world cannot be seen or even touched, they best
be felt with the heart.”
Helen Keller
ALOHA & MAHALO
Until We All Meet Again
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7

Contents
Epigraph
Preface
About the Book
Acknowledgments
Chapter 1 Hospitals Through the Ages
Learning Objectives
Early Hindu and Egyptian Hospitals
Greek and Roman Hospitals
Hospitals of the Early Christian Era
Islamic Hospitals
Early Military Hospitals
Medieval Hospitals
The “Dark Age” of Hospitals
Hospitals of the Renaissance
Hospitals of the 18th Century
Early Hospitals in the United States
Late 19th Century Renaissance
20th-Century Progress
Health Care and Hospitals in the 21st Century
History Challenges Us to Do Better
Chapter Review
Review Questions
Notes
Chapter 2 Government, Law, and Ethics
Learning Objectives
Development of Law
Sources of Law
Government Organization
Department of Health and Human Services
Government Ethics
Political Malpractice
Chapter Review
Review Questions
Notes
Chapter 3 Tort Law—Negligence
Learning Objectives
Objectives of Tort Law
Negligence
Forms of Negligence
8

Degrees of Negligence
Elements of Negligence
Summary Case
Chapter Review
Review Questions
Notes
Chapter 4 Intentional Torts
Learning Objectives
Assault and Battery
False Imprisonment
Defamation of Character
Fraud
Invasion of Privacy
Infliction of Mental Distress
Products Liability
Chapter Review
Review Questions
Notes
Chapter 5 Tort Reform and Risk Reduction
Learning Objectives
Mediation and Arbitration
Statute of Limitations
Structured Awards
Medical Malpractice Screening Panels
Collateral Source Rule
Contingency Fee Limitations
Countersuits: Frivolous Claims
Joint and Several Liability
Malpractice Caps
No-Fault System
Regulation of Insurance Practices
Reducing the Risks of Malpractice
Collaboration in Tort Reform
Chapter Review
Review Questions
Notes
Chapter 6 Criminal Aspects of Health Care
Learning Objectives
Criminal Procedure
Healthcare Fraud
Kickbacks
Tampering with Drugs
9

Internet Pharmacy and Sale of Drugs
Falsification of Records
Patient Abuse
Criminal Negligence
Homicide
Manslaughter
Rape and Sexual Assault
Theft
Chapter Review
Review Questions
Notes
Chapter 7 Contracts and Antitrust
Learning Objectives
What Is a Contract?
Types of Contracts
Elements of a Contract
Breach of Contract
Corporate Contracts
Partnership
Agent
Independent Contractor
Conditions
Performance
Nonperformance Defenses
Remedies
Employment Contracts
Medical Staff Bylaws: A Contract
Exclusive Contracts
Restraint of Trade
Hospital Staff Privileges
Transfer Agreements
Insurance Contract
Chapter Review
Review Questions
Notes
Chapter 8 Civil Procedure and Trial Practice
Learning Objectives
Pleadings
Discovery
Motions
Pretrial Conference
Notice of Trial
Memorandum of Law
The Courtroom and the Judge
10

The Jury
Subpoenas
Burden of Proof
Res Ipsa Loquitur
Opening Statements
Examination of Witnesses
Judicial Notice Rule
Evidence
Defenses Against Plaintiff’s Allegations
Closing Statements
Judge’s Charge to the Jury
Jury Deliberation and Determination
Awarding Damages
Joint and Several Liability
Appeals
Execution of Judgments
Chapter Review
Review Questions
Notes
Chapter 9 Corporate Structure and Legal Issues
Learning Objectives
Authority of Corporations
Corporate Committee Structure
Corporate Ethics
Corporate Negligence
Doctrine of Respondeat Superior
Governing Body Responsibilities
Corporate Reorganization and Mergers
Chapter Review
Review Questions
Notes
Chapter 10 Medical Staff Organization and
Malpractice
Learning Objectives
Medical Staff Organization
Medical Director
Medical Staff Privileges
Common Medical Errors
Patient Assessments
Diagnosis
Treatment
Discharge and Follow-Up Care
Infections
Psychiatry
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Principles of Medical Ethics
Physician–Patient Relationship
Chapter Review
Review Questions
Notes
Chapter 11 Nursing and the Law
Learning Objectives
Scope of Practice
Nurse Licensure
Nursing Careers
Advanced Practice Nurses
Legal Risks of Nurses
Duty to Question Discharge
Duty to Report Physician Negligence
Chapter Review
Review Questions
Notes
Chapter 12 Hospital Departments and Allied
Professionals
Learning Objectives
Paramedics and First Responders
Emergency Department
Laboratory
Medical Assistant
Nutritional Services
Pharmacy
Physical Therapy
Physician Assistant
Radiology and Related Lawsuits
Respiratory Therapist
Chiropractor
Dentistry
Podiatrist
Security
Licensure and Certification of Healthcare Professionals
Helpful Advice for Caregivers
Chapter Review
Review Questions
Notes
Chapter 13 Information Management and Patient
Records
Learning Objectives
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Information Management
Medical Record Contents
Documentation of Care
Privacy Act of 1974
Health Insurance Portability and Accountability Act
Patient Objects to Record Entries
Ownership and Release of Medical Records
Use of Patient Data Collected
Retention of Records
Electronic Medical Records
Legal Proceedings and the Medical Record
Falsification of Records
Illegible Handwriting
Timely Completion of Medical Records
Confidential and Privileged Communications
Charting: Some Helpful Advice
Chapter Review
Review Questions
Notes
Chapter 14 Patient Consent, Rights, and
Responsibilities
Learning Objectives
Patient Consent
Patient Rights
Patient Responsibilities
Chapter Review
Review Questions
Notes
Chapter 15 Healthcare Ethics
Learning Objectives
Ethics
Morality
Ethical Theories
Principles of Healthcare Ethics
Values
Pillars of Moral Strength
Religious Ethics and Spirituality
Secular Ethics
Professional Ethics
Ethics Committee
Reasoning and Decision Making
Moral Compass Gone Astray
Chapter Review
Review Questions
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Notes
Chapter 16 Procreation and Ethical Dilemmas
Learning Objectives
Abortion
Sterilization
Artificial Insemination
Surrogacy
Chapter Review
Review Questions
Notes
Chapter 17 End-of-Life Issues
Learning Objectives
Patient Autonomy
Constitutional Right to Refuse Care
Legislative Response
Defining Death
Futility of Treatment
Do-Not-Resuscitate Orders
Withholding and Withdrawal of Treatment
Euthanasia
Physician-Assisted Suicide
Advance Directives
Autopsy
Organ Donations and Transplantation
Research, Experimentation, and Clinical Trials
Human Genetics
Stem Cell Research
Chapter Review
Review Questions
Notes
Chapter 18 Legal Reporting Requirements
Learning Objectives
Abuse
Child Abuse
Senior Abuse
Communicable Diseases
Aids
Births and Deaths
Adverse Drug Reactions
Physician Competency
Incident Reporting
Sentinel Events
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Look Closer, See Me
Chapter Review
Review Questions
Notes
Chapter 19 Labor Relations
Learning Objectives
U.S. Department of Labor
Unions and Healthcare Organizations
National Labor Relations Act
Norris–Laguardia Act
Labor–Management Reporting and Disclosure Act
Fair Labor Standards Act
Civil Rights Act
Occupational Safety and Health Act
Rehabilitation Act
Family and Medical Leave Act
State Labor Laws
Workers’ Compensation
Labor Rights
Management Rights
Affirmative Action Plan
Patient Rights During Labor Disputes
Injunctions
Administering Collective Bargaining Agreement
Discrimination in the Workplace
Chapter Review
Review Questions
Notes
Chapter 20 Employment at Will, Rights, and
Responsibilities
Learning Objectives
Employment at Will
Public Policy Issues and Termination
Termination
Unemployment Compensation
Wrongful Discharge
Defending a Claim for Unfair Discharge
Fairness: The Ultimate Test
Effective Hiring Practices
Employee Rights
Employee Responsibilities
The Caregiver’s Pledge
Chapter Review
Review Questions
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Notes
Chapter 21 Professional Liability Insurance
Learning Objectives
Insurance Policies
Insurance Policy Provisions
Conditions of Insurance Policies
Liability of the Professional
Intentional Torts: Coverage Denied
Medical Liability Insurance
Self-Insurance
Trustee Coverage
Mandated Medical Staff Insurance Coverage
Investigation and Settlement of Claims
Chapter Review
Review Questions
Notes
Chapter 22 Managed Care and National Health
Insurance
Learning Objectives
Managed Care
Models of Managed Care Organizations
Federally Qualified HMO
State HMO Laws
Case Management Firms
Third-Party Administrators
Utilization Review
Liability for Nonparticipating Hospitals
Employee Retirement Income Security Act
Reducing Exposure to Liability
Health Care Quality Improvement Act of 1986
Ethics in Patient Referral Act (1989)
Managed Care and Legal Actions
Price Fixing
Market Power
National Health Insurance
Veterans Care
Chapter Review
Review Questions
Notes
Author’s Afterword
Glossary
Index
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17

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Epigraph
I consider ethics, as well as religion, as supplements to law in the
government of man.
—Thomas Jefferson, President of the United States (1743–1826)
In law a man is guilty when he violates the rights of others. In ethics he
is guilty if he only thinks of doing so.
—Immanuel Kant, Philosopher (1724−1804)
Books are the carriers of civilization. Without books, history is silent,
literature dumb, science crippled, thought and speculation at a
standstill. I think that there is nothing, not even crime, more opposed to poetry,
to philosophy, ay, to life itself than this incessant business.
—Henry David Thoreau, Author, Poet, Philosopher (1817–1862)
It is curious—curious that physical courage should be so common in
the world, and moral courage so rare.
—Mark Twain, American Author, Humorist (1835−1910)
In civilized life, law floats in a sea of ethics.
—Earl Warren, Chief Justice of the United States (1891–1974)
How far you go in life depends on your being tender with the young,
compassionate with the aged, sympathetic with the striving, and
tolerant of the weak and the strong— because someday you will have been all
of these.
—George Washington Carver, American Inventor (1864–1943)
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20

L
Preface
He has achieved success who has lived well, laughed often and loved
much; who has gained the respect of intelligent men and the love of
little children; who has filled his niche and accomplished his task; who has left
the world better than he found it, whether by an improved poppy, a perfect
poem, or a rescued soul; who has never lacked appreciation of earth’s beauty
or failed to express it; who has always looked for the best in others and given
them the best he had; whose life was an inspiration; whose memory a
benediction.
—Bessie Stanley
egal Aspects of Health Care Administration, Thirteenth Edition, as with the
previous 12 editions, continues to be the most comprehensive and
engaging book encompassing both the legal and ethical issues of healthcare
administration. The Thirteenth Edition continues its tradition of providing a
solid foundation in a wide range of current healthcare topics in an
understandable format that carefully guides the reader through the complex
maze of law and ethics, as well as an overview of practical ways to improve
quality and safety in the delivery of patient care. As in previous editions, the
Thirteenth Edition serves as a valuable tool for both undergraduate and
graduate programs. Additionally, as has been well recognized by practicing
healthcare professionals, Legal Aspects of Health Care Administration
continues to be a valuable reference tool in their day-to-day work activities.
The author infuses life into the educational process through legal case studies
that have been litigated in the courtroom or reported in the press, as well as
real-world healthcare events through “reality checks” experienced by patients
and healthcare professionals. The author’s approach inspires dynamic
discussion and excitement in the learning process, thus creating an
atmosphere of interest and participation, which is conducive to learning.
Although the court cases relating examples of malpractice are often mirror
images of the failures of medicine, this Thirteenth Edition provides a
comprehensive resource from which the reader will learn how the law, ethics,
and medicine intertwine. The contents of this book serve as a reminder to its
readers of the need to learn from the mistakes and tragedies experienced by
others to avoid repeating them. The legal cases and resulting headlines
should stand as a reminder of the responsibility that caregivers bear to the
profession they have chosen.
With revised estimates that as many as 400,000 patients die each year as a
result of medical errors, according to a September 2013 study reported in the
Journal of Patient Safety, it is mandatory that caregivers be ever mindful of the
21

nature of the life-and-death settings within which they work. At the time of this
writing the headlines continue to repeat themselves. For example, on
December 4, 2014, an Oregon hospital’s medication error led to the death of a
65-year-old patient. This error resulted in three employees being placed on
administrative leave. The knowledge gained here will help prevent caregivers
from becoming the next headline.
Although there will always be a “next time” for human error, the reader who
grasps the contents in this book and understands its lessons will better
understand how failures can turn to success and the pain of past mistakes can
turn to hope. The application of the knowledge gained from this book and in
the classroom learning process will serve to improve the competency of the
reader and the quality of life for the patient through an educational process
that will help prevent further injury in the healing process.
22

23

About the Book
Legal Aspects of Health Care Administration, Thirteenth Edition, lays a strong
foundation in both health law and ethics. Chapter 1 begins with a review of
hospitals through the ages, providing the reader with an overview of the
historical development of hospitals as influenced by medical progress. This
allows the reader to see the successes and failures of hospitals through the
centuries and how history has a way of repeating itself, thus creating a need to
learn from past mistakes in order to prevent repeating them. Chapter 2
continues with an introduction to government, law, and ethics.
Chapters 3 and 4 introduce the reader to negligence and intentional torts.
Chapter 5 discusses tort reform and risk reduction, thus reducing the costs of
health care. Chapter 6 reviews the criminal aspects of health care, and
Chapter 7 reviews the basics of contract law as it pertains to healthcare
professionals. The reader is then introduced to civil procedure and trial
practice in Chapter 8. The reader’s journey continues with a discussion of
corporate structure and related legal issues in Chapter 9. A review of medical
staff organization and physician liability is covered in Chapter 10, followed by
nursing and the law and common nursing practice errors in Chapter 11.
Chapter 12 reviews the legal risks of various other hospital departments and
healthcare professions.
Information management and patient records are reviewed in Chapter 13.
Issues related to patient consent, rights, and responsibilities are reviewed in
Chapter 14, followed by a discussion of ethical theories, principles, virtues,
and values. Chapter 15 concentrates on healthcare ethics, theories, principles,
and values. This review is followed by procreation and ethical dilemmas in
Chapter 16, and end-of life issues in Chapter 17.
Legal reporting requirements are discussed in Chapter 18. Labor relations and
employment-at-will, employee rights, and employee responsibilities are
reviewed in Chapters 19 and 20, respectively. An overview of professional
liability insurance, managed care, and national health insurance is provided in
Chapters 21 and 22.
The practical application of the law and ethics in the healthcare setting is
accomplished by interspersing the thoughts of great minds through Quotes,
applicable News Clippings, provider and organizational experiences through
Reality Checks, and patient experiences through legal rulings and summaries
through Case Law. When reviewing the various cases, the reader should
consider both the ethical and legal implications of a dilemma and how they
intertwine with one another. It is important to recognize that the decisions in
the cases described are generally governed both by applicable state and
federal statutes and common law principles. When reviewing a case, the
24

reader must keep in mind that the case law and statutes of one state are not
binding in another state.
There is no one magical legal or ethics book that can possibly compress into
its pages the plethora of issues that have bombarded the healthcare industry.
This book is merely a beginning of the study of legal and ethical issues and is
an adventure that all caregivers should take. Although there is always much
more that could be discussed on any one topic, the reader will understand that
this book provides a solid foundation for practical everyday use as well as
further study in the law and ethics.
Each life is like a novel. Filled with moments of happiness, sadness,
crisis, defeat, and triumph. When the last page has been written, will
you be happy or saddened by what you read?
—Author Unknown
The Thirteenth Edition presents real-world life experiences that bring the
reader through a journey of learning that provides an effective transitional
stage from the classroom to the reality of the everyday work environment.
When considering matters of law and ethics, healthcare professionals are
usually considering matters of freedom in regard to personal choices, one’s
obligations to other sentient beings, or judgments about human character and
the right to choose. The author’s objective is to equip the reader with the
background knowledge necessary to understand that legal and ethical
behavior begins with recognizing that we have alternatives and choices in our
behavior. To make good decisions, each individual must first understand that
those decisions will only be as good as the knowledge and understanding he
or she possesses of right and wrong. This book is not an indictment of any
profession or organization. There is a deluge of ethical issues in every aspect
of human existence. Although cultural differences, politics, and religion
influence who we are, it is all of life’s experiences that affect who we become.
IT’S YOUR GAVEL . . .
“It’s Your Gavel” boxes offer the reader an opportunity to make their own
decisions about actual court cases. Many chapters begin with a case that has
been reviewed by the courts in state or federal jurisdictions. After reviewing
each case and subsequent relevant material, readers can take on the role of
the fact finder and render a decision. Then, at the end of the respective
chapters, the actual court findings and reasoning for each case are given in
“The Court’s Decision” box.
▸ Case Presentation Format
When reviewing the various cases in this book, the reader should consider
what happened, why things went wrong, what the relevant legal issues are,
and how the event could have been prevented. The reader should also
25

consider how, if one fact in a particular case changed, the outcome might have
been different. What would that fact be? The cases presented in the text have
been chosen because of the frequency of their occurrence. The general format
for each boxed case review is as follows:
Title: Each case has a title that signals the type of case to be reviewed.
Case Citation: The case citation describes where a court’s opinion in a
particular case can be located. It identifies the parties in the case, the text in
which the case can be found, the court writing the opinion, and the year in
which the case was decided. For example, the case citation of Bouvia v.
Superior Court (Glenchur), 225 Cal. Rptr. 297 (Cal. Ct. App. 1986) is
described as follows:
Bouvia v. Superior Court (Glenchur): Identifies the basic parties
involved in the lawsuit
225 Cal. Rptr. 297: Identifies the case as being reported in volume 225
of the California Reporter on page 297
Cal. Ct. App. 1986: Identifies the case as being decided in the
California Court of Appeals in 1986
Students who wish to research a specific case should visit a law school library,
which provides access to various state and regional reporters.
Facts: A review of the material facts of the case is presented.
Issues: This is the disputed point or question the judge or jury must decide.
The issues discussed in any given case are selected for review based on
medical and legal pertinence to the healthcare professional. Although any one
case in this text may have multiple issues, emphasis is placed on those issues
considered to be more relevant for the reader in the context of the topic being
discussed.
Holding: The court’s ruling based on the facts, issues, and applicable laws
pertaining to a case is summarized.
Reason: The rationale for the court’s decision based on the facts, issues, and
relevant laws surrounding a case is presented.
Author’s Note: This book is not a definitive treatise, but rather a portrait of the
ever-evolving story of health care through the study of law and ethics. It is
educational in nature and should not be considered a substitute for legal
advice on any particular issue. Moreover, each chapter presents an overview,
rather than an exhaustive treatment, of the various topics discussed.
26

The author, legal reviewers, and/or the publisher cannot be responsible for
any errors or omissions, including additions to, interpretations of, and/or
changes in the regulations presented in this book.
27

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Acknowledgments
The author especially acknowledges the staff at Jones & Bartlett Learning,
whose guidance and assistance was so important in making this Thirteenth
Edition a reality. Special thanks to Mike Brown, Director of Product
Management at Jones & Bartlett Learning, who has once again been truly an
amazing leader and mentor. I would like to thank Danielle Bessette, Product
Specialist, who worked diligently and tirelessly with me on this Thirteenth
Edition. I would also especially like to acknowledge Sophie Teague, Senior
Marketing Manager, Brooke Haley, Production Assistant, and Merideth
Tumasz, Rights & Media Specialist, who worked with me on the Thirteenth
Edition. Thank you for allowing me to leave behind this legacy of writing.
I am grateful to the very special people in the more than 1,000 hospitals and
ambulatory sites from Alaska to Puerto Rico with whom I have consulted,
surveyed, and provided education over many years. Their shared experiences
have served to remind me of the importance of making this book more
valuable in the classroom and as a reference for practicing healthcare
professionals.
To my students in healthcare law and ethics classes at the New School for
Social Research, Molloy College, Long Island University–C.W. Post Campus,
Saint Francis College, and Saint Joseph’s College; my intern from Brown
University; my resident in hospital administration from The George
Washington University; and those I have instructed through the years at
various seminars, I will always be indebted for your inspiration.
Many thanks are also extended to all of the special people at the National
Library of Medicine and the Library of Congress for their guidance over the
years in locating research materials.
29

© Hein Nouwers/Shutterstock, Inc.
30

CHAPTER 1
Hospitals Through the Ages
I was created at the end of the Renaissance, watched pirates rule the
oceans as Ivan the Terrible ruled Russia, and witnessed the arrest of
Galileo for believing the Earth revolved around the Sun.
—I Am History
31

▸ LEARNING OBJECTIVES
The reader, upon completion of this chapter, will be able to:
Explain how societal conflicts due to politics, religion, and warfare have
both impeded the growth of hospitals and contributed to their progress.
Describe how advances in medicine led to the rise of the modern-day
hospital and improved the quality of patient care.
Describe how the knowledge gained from best practices (e.g., infection
control) can lead to progress while at the same time result in patient
harm if not consistently followed over time.
We can learn from history how past generations thought and acted,
how they responded to the demands of their time and how they solved
their problems. We can learn by analogy, not by example, for our
circumstances will always be different than theirs were. The main thing history
can teach us is that human actions have consequences and that certain
choices, once made, cannot be undone. They foreclose the possibility of
making other choices and thus they determine future events.
—Gerda Lerner
This chapter provides the reader with notable historical events, from ancient
civilizations to the present time, which continue to revolutionize the delivery of
patient care. It provides a review of the advance of civilization as disclosed in
the history of hospitals and medical achievements through the ages. A study
of the past often reveals errors that then can be avoided, customs that persist
only because of tradition, and practices that have been superseded by others
that are more effective. The past may also bring to light long-abandoned
practices, which may be revived to some advantage. The story of the birth and
evolution of the hospital portrays the triumph of civilization over barbarism and
the progress of civilization toward an ideal characterized by an interest in the
welfare of the community.
This chapter reviews some of the most amazing medical discoveries and
achievements in the history of medicine. It also describes some of the failures
that continue to plague the healthcare industry. The importance of the study of
history is undeniable. The Spanish philosopher George Santayana (1863–
1952) recognized this all too well when he said, “Those who do not remember
the past are condemned to repeat it.” George Bernard Shaw (1856–1950), an
Irish dramatist and socialist, recognized the tragedies of the history of
civilization when he said, “If history repeats itself, and the unexpected always
happens, how incapable must man be of learning from experience.” Yes,
Santayana and Shaw are right: If we do not learn from the mistakes of the
past, we are doomed to repeat them. Progress in health care will only prevail
so long as advances in medicine are practiced by each new generation.
1
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Although the struggle to progress is a road filled with many pitfalls, hope still
looms.
Martin Makary wrote in the Wall Street Journal that “Medical errors kill enough
people to fill four jumbo jets a week . . . To do no harm going forward, we must
be able to learn from the harm we have already done.” If we do not learn from
historical events to those of the present days, we are bound to repeat them.
This chapter takes the reader on a journey from the past to the present, from
which to spring forward on a better road that returns the people’s trust in the
safety net of the nation’s hospital systems. Here, we go “back into the future”
to bring forth the fruits of healthier hospitals and healthier lives. Let the reader
now travel that road.
2
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▸ EARLY HINDU AND EGYPTIAN HOSPITALS
Two ancient civilizations, the Hindu (in what is now India) and the Egyptian,
had crude hospitals. Hindu literature reveals that in the 6th century BC,
Buddha appointed a physician for every 10 villages and built hospitals for the
crippled and the poor. His son, Upatiso, built shelters for the diseased and for
pregnant women. These examples probably moved Buddha’s devotees to
erect similar hospitals. Despite a lack of records, historians agree that
hospitals existed in Ceylon as early as 437 BC.
During his reign from 273 to 232 BC, King Asoka built 18 hospitals that hold
historical significance because of their similarities to the modern hospital.
Attendants gave gentle care to the sick, provided patients with fresh fruits and
vegetables, prepared their medicines, gave massages, and maintained their
personal cleanliness. Hindu physicians, adept at surgery, were required to
take daily baths, keep their hair and nails short, wear white clothes, and
promise that they would respect the confidence of their patients. Although
bedside care was outstanding for those times, medicine was only beginning to
find its way.
Egyptian physicians were probably the first to use drugs such as alum,
peppermint, castor oil, and opium. In surgery, anesthesia consisted of hitting
the patient on the head with a wooden mallet to render the patient
unconscious. Surgery was largely limited to fractures, and medical treatment
was usually given in the home. Therapy away from home was often available
in temples, which functioned as hospitals.
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▸ GREEK AND ROMAN HOSPITALS
The term hospital derives from the Latin word hospitalis, which relates to
guests and their treatment. The word reflects the early use of these institutions
not merely as places of healing, but also as havens for the poor and weary
travelers. Hospitals first appeared in Greece as aesculapia, named after the
Greek god of medicine, Aesculapius. For many centuries, hospitals developed
in association with religious institutions, such as the Hindu hospitals opened in
Sri Lanka in the 5th century BC and the monastery-based European hospitals
of the Middle Ages (5th century to 15th century AD). The Hotel-Dieu in Paris, a
monastic hospital founded in 660 AD, is still in operation today.
In early Greek and Roman civilization, when medical practices were rife with
mysticism and superstitions, temples also were used as hospitals. Every
sanctuary had a sacred altar before which the patient, dressed in white, was
required to present gifts and offer prayers. If a patient was healed, the cure
was credited to miracles and divine visitations. If the patient remained ill or
died, he or she was considered to be lacking in purity and unworthy to live.
Greek temples provided refuge for the sick. One of these sanctuaries,
dedicated to Aesculapius, is said to have existed as early as 1134 BC at
Titanus. Ruins attest to the existence of another, more famous Greek temple
built several centuries later in the Hieron, or sacred grove, at Epidaurus. Here,
physicians ministered to the sick holistically in body and soul. They prescribed
medications such as salt, honey, and water from a sacred spring. They gave
patients hot and cold baths to promote speedy cures and encouraged long
hours of sunshine and sea air, combined with pleasant vistas, as an important
part of treatment. The temple hospitals housed libraries and rooms for visitors,
attendants, priests, and physicians. The temple at Epidaurus even boasted
what might be described as the site of the first clinical records. The columns of
the temple were inscribed with the names of patients, brief histories of their
cases, and comments as to whether or not they were cured.
The aesculapia spread rapidly throughout the Roman Empire, as well as
through the Greek world. Although some hospitals were simply spas, others
followed the therapy outlined by the leading physicians of the day.
Hippocrates, for example, a physician born about 460 BC, advocated medical
theories that have startling similarity to those of the present day. He employed
the principles of percussion and auscultation, wrote intelligently on fractures,
performed numerous surgical operations, and described such conditions as
epilepsy, tuberculosis, malaria, and ulcers. He also kept detailed clinical
records of many of his patients. Physicians like Hippocrates not only cared for
patients in the temples, but also gave instruction to young medical students.
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▸ HOSPITALS OF THE EARLY CHRISTIAN ERA
Christianity and the doctrines preached by Jesus stressing the emotions of
love and pity gave impetus to the establishment of hospitals, which, with the
advance of Christianity, became integral parts of the church institution. These
Christian hospitals, which replaced those of Greece and Rome, were devoted
entirely to care of the sick, and accommodated patients in buildings outside
the church proper.
A decree of Constantine in 335 AD closed the aesculapia and stimulated the
building of Christian hospitals, which, during the 4th and 5th centuries,
reached the peak of their development. Many were erected by the rulers of the
period or by wealthy Romans who had converted to Christianity. By the year
500, most large towns in the Roman Empire had hospitals. Nursing, inspired
by religion, was gentle and considerate, but soon began to discard the medical
precepts of Hippocrates, Antyllus, and other early Greek physicians because
of their pagan origins. Instead, health care turned toward mysticism and
theurgy (the working of a divine agency in human affairs) as sources of
healing.
Hospitals rarely succeeded during the centuries leading to the Middle Ages;
only a few existed outside Italian cities. Occasional almshouses in Europe
sheltered some of the sick, whereas inns along the Roman roads housed
others. No provision appears to have been made for care of the thousands of
helpless paupers who had been slaves and were later set free when
Christianity was introduced into the Roman Empire.
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▸ ISLAMIC HOSPITALS
The followers of Mohammed were almost as dedicated as the Christians in
caring for the sick. In Baghdad, Cairo, Damascus, Cordova, and many other
cities under their control, luxurious hospital accommodations were frequently
provided. Harun al-Rashid, the glamorous caliph (a title for a religious or civil
ruler claiming succession from Mohammad) of Baghdad (786–809 AD), built a
system of hospitals and paid the physicians himself. Medical care in these
hospitals was free. Approximately four centuries later, in 1160, a Jewish
traveler reported that he had found as many as 60 dispensaries and
infirmaries in Baghdad alone. The Persian physician Rhazes, who lived from
approximately 850 to 923 AD, was skilled in surgery. He is believed to be the
first to use the intestines of sheep for suturing and to cleanse patient wounds
with alcohol. He also gave the first rational accounts of smallpox and measles.
Islamic physicians like Rhazes received much of their medical knowledge from
the persecuted Christian sect known as the Nestorians. Nestorius (Archbishop
of Constantinople from April 428 to August 431) was driven into the desert with
his followers after having been appointed patriarch of Constantinople and took
up the study of medicine. The school at Edessa, in Mesopotamia, with its two
large hospitals, eventually came under the control of the Nestorians, where
they established a remarkable teaching institution. Eventually driven out of
Mesopotamia by the orthodox bishop Cyrus, they fled to Persia, where they
established the famous school at Gundishapur, which is considered to be the
true starting point of Islamic medicine. Gundishapur was home to the world’s
oldest known teaching hospital and also comprised a library and a university. It
was located in the present-day province of Khuzestan, in southwestern Iran,
not far from the Karun River.
Islamic medicine flourished up to about the 15th century. Physicians were
acquainted with the possibilities of inhalation anesthesia. They instituted
precautions against adulteration of drugs and developed a vast number of new
drugs. Islamic countries also built asylums for the mentally ill 1,000 years
before such institutions appeared in Europe. The people of Islam made a
brilliant start in medicine, but never fulfilled the great promise that glowed in
their early work in medical arts and hospitalization was never fulfilled. Wars,
politics, superstitions, and a nonprogressive philosophy stunted the growth of
a system that had influenced the development of hospitals.
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▸ EARLY MILITARY HOSPITALS
Engraved on a limestone pillar dating back to the Sumerians (2920 BC) are
pictures that depict, among other military procedures, the assemblage of the
wounded. The Book of Deuteronomy records that Moses established
outstanding rules for military hygiene. Out of the urgency of care for the
wounded in battle came much of the impetus for medical progress.
Hippocrates is quoted as saying that “war is the only proper school for a
surgeon.” Under the Romans, surgery advanced largely because of
experience gained through gladiatorial and military surgery. Throughout the
centuries, warfare has been a two-edged sword, producing tragic events while
providing an environment for the advancement of surgery and medicine. From
an ethical point of view, the question arises: What surgical and medical
advancements might have been lost due to the failure of mankind to sit at the
table of peace and compromise on differences based on logic and reason?
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▸ MEDIEVAL HOSPITALS
Religion continued to be the most important factor in the establishment of
hospitals during the Middle Ages. A number of religious orders created
hospitia, or travelers’ rests, and infirmaries adjacent to monasteries provided
food and temporary shelter for weary travelers and pilgrims. One of these, the
famous alpine hospice of St. Bernard, founded in 962, gave comfort to the
weary and sent its renowned dogs to the rescue of lost mountain climbers.
The hospital movement grew rapidly during the Crusades, which began in
1096. Military hospital orders sprang up, and accommodations for sick and
exhausted crusaders were provided along well-traveled roads. One body of
crusaders organized the Hospitallers of the Order of St. John, which in 1099
established in the Holy Land a hospital capable of caring for 2,000 patients.
Knights of this order took personal charge of service to patients and often
denied themselves so that the sick might have food and medical care. For
years, these institutions were the best examples of hospitals of that period.
Although physicians cared for physical ailments to afford relief, they rarely
attempted to cure the sick. Dissection of a human body would have been
sacrilege because the body was created in the image of God.
Finally, an active period of hospital growth came during the late 12th and early
13th centuries. In 1198, Pope Innocent III urged hospitals of the Holy Spirit to
be subscribed for by the citizenry of many towns. He set an example by
founding a model hospital in Rome, known as Santo Spirito, in Sassia. Built in
1204, it survived until 1922, when it was destroyed by fire. In Rome, nine other
hospitals were founded shortly after completion of the one in Sassia; it is
estimated that in Germany alone, 155 towns had hospitals of the Holy Spirit
during early medieval times.
Although most hospitals constructed during the Middle Ages were associated
with monasteries or founded by religious groups, a few cities, particularly in
England, built municipal institutions. Like all hospitals of the period, the
buildings were costly and often decorated with colorful tapestries and stained
glass windows, but the interiors were frequently little more than large drafty
halls with beds lining each side. Some hospitals were arranged on the ward
plan, usually built in the shape of a cross. Floors were made of red brick or
stone, and the only ventilation came from the cupola in the ceiling.
With the spread of leprosy during the 12th and 13th centuries, lazar houses
sprang up, supplying additional hospital facilities. Made up of crude structures,
lazar houses were usually built on the outskirts of towns and maintained for
the segregation of lepers rather than for their treatment. Special groups of
attendants, including members of the Order of St. Lazar, nursed the patients.
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The group represented an important social and hygienic movement because
their actions served to check the spread of epidemics through isolation. The
group is credited for virtually stamping out leprosy.
During the same period of hospital growth, three famous London institutions
were established: St. Bartholomew’s in 1137, St. Thomas’s before 1207, and
St. Mary of Bethlehem in 1247. St. Bartholomew’s, founded by Rahere
(reportedly the court jester of Henry I), cared for the sick poor but, unlike many
hospitals of that day, was well organized. St. Thomas’s Hospital was founded
by a woman who was later canonized St. Mary Overie. It burned in 1207, was
rebuilt 6 years later, and was constructed again on a new site in 1228. St.
Mary of Bethlehem was the first English hospital to be used exclusively for the
mentally ill.
The Hotel-Dieu of Paris was probably typical of the better hospitals of the
Middle Ages. Built at the beginning of the 13th century, the hospital provided
four principal rooms for patients in various stages of disease, as well as a
room for convalescents and another for maternity patients. Illustrations by
artists of the time show that two persons generally shared one bed.
Heavy curtains sometimes hung from canopies over the bed to afford privacy,
but this advantage was more than offset by the fact that the draperies, which
were never washed, spread infection and prevented free ventilation. The
institution was self-contained, maintaining a bakery, herb garden, and farm.
Often, patients who had fully recovered remained at the hospital to work on
the farm or in the garden for several days in appreciation for the care they had
received.
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▸ THE “DARK AGE” OF HOSPITALS
Pictures and records of hospitals during the Middle Ages illustrate how many
hospitals commonly crowded several patients into one bed regardless of the
type or seriousness of the illness. A mildly ill patient might be placed in the
same bed as an occupant suffering from a contagious disease. A notable
exception to the general deterioration in medicine during this era was the effort
of those monks who copied by hand and preserved the writings of Hippocrates
and other ancient physicians.
The great Al-Mansur Hospital, built in Cairo in 1276, struck a contrast to the
European institutions of the Middle Ages. It was equipped with separate wards
for the more serious diseases and provided outpatient clinics. The handful of
hospitals like Al-Mansur would lay the groundwork for hospital progress to
come in later centuries.
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▸ HOSPITALS OF THE RENAISSANCE
During the revival of learning around the close of the 14th century, hundreds of
medical hospitals in Western Europe received the new, more inquiring
surgeons that the Renaissance produced. New drugs were developed, and
anatomy became a recognized study. Ancient Greek writings were printed,
and dissection was performed by such masters as Leonardo da Vinci, known
as the originator of cross-sectional anatomy, and Andreas Vesalius, author of
De Humani Corporis Fabrica (On the Fabric of the Human Body), on human
anatomy. Hospitals became more organized. Memoranda from 1569 describe
the duties of the medical staff in the civil hospital of Padua, a city that was
home to the most famous medical school of the 16th century. These read:
There shall be a doctor of physic upon whom rests the duty of visiting all
the poor patients in the building, females as well as males; a doctor of
surgery whose duty it is to apply ointments to all the poor people in the
hospital who have wounds of any kind; and a barber who is competent to
do, for the women as well as the men, all the other things that a good
surgeon usually does.
The practice of surgery during the Renaissance became more scientific and
progressive. Operations for lithotomy and hernioplasty were undertaken
without the use of anesthetics, and surgery was practiced by the long-robe
surgeons, a small group who were educated in the universities and permitted
to perform all types of operations, and by the short-robe surgeons, the barbers
who, in most communities, were allowed only to leech and shave the patient,
unless permission was granted to extend the scope of treatment. Both groups
were regarded as inferior to physicians.
In 1506, a band of long-robe surgeons organized the Royal College of
Surgeons of Edinburgh. By 1540, both the long- and short-robe surgeons in
England joined to form the Company of Barber-Surgeons of London. In 1528,
Thomas Linacre, physician to Henry VIII, founded and became the first
president of the Royal College of Physicians of England.
Although English physicians were organized during the 16th century, Henry
VIII of England ordered that hospitals associated with the Catholic Church be
given over to secular uses or destroyed. The sick were turned out into the
streets. Conditions in hospitals became so intolerable that the king was
petitioned to return one or two buildings for the care of patients. Henry
consented and restored St. Bartholomew’s in 1544. Practically the only hope
for the sick poor from outlying towns was to journey many miles to London.
The dearth of hospitals in England continued throughout the 17th century,
when the medical school was developed. The French and the English quickly
3
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accepted what had originated in Italy—the first attempt to make medical
instruction practical. St. Bartholomew’s took the lead in education by
establishing a medical library in 1667 and permitted apprentices to walk the
wards for clinical teaching under experienced surgeons.
In 1634, an outstanding contribution was made to nursing by the founding of
the order of the Daughters of Charity of St. Vincent de Paul. Originating at the
Hotel-Dieu of Paris as a small group of village girls who were taught nursing
by the nuns, the order grew rapidly and was transplanted to the United States
by Mother Seton in 1809.
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▸ HOSPITALS OF THE 18TH CENTURY
During the 18th century, the building of hospitals began to revive. Because of
poverty, the movement made slow progress in England, but a few hospitals
were built and supported jointly by parishes. By 1732, there were 115 such
institutions in England, some of them a combination of almshouse and
hospital. As hospitals grew in number, new advances in health care began.
The Royal College of Physicians established a dispensary where medical
advice was free and medicines were sold to the needy at cost. Controversies
and lawsuits, however, brought an untimely end to this early clinic. Not
discouraged by this experience, the Westminster Charitable Society created a
similar dispensary in 1715. The same organization, in 1719, founded
Westminster Hospital, an infirmary built by voluntary subscription, in which the
staff gave its services gratuitously. Ten years later, the Royal College of
Physicians in Edinburgh opened the Royal Infirmary. London Hospital, another
notable institution, was founded in 1740. Admission of charity patients to the
London Hospital was apparently by an admission ticket. Among its historical
relics is an admission card that had on the back of the card a representation of
a biblical scene drawn by the artist William Hogarth.
In 1727, John Theophilus Desaguliers invented a machine for pumping fresh
air into and foul air out of rooms. It was first used in prisons and public
buildings and later installed in hospitals. Other mechanical improvements for
the care of the sick were sadly wanting, but worse was the lack of cleanliness
and the crude and careless treatment of patients.
In the Elizabethan period, with its materialistic and cold culture, the
deterioration of hospital service that had set in under Henry VIII continued.
The lowest point in the deterioration of hospitals came during the 18th and first
half of the 19th centuries. Considering the increase in knowledge during the
18th century, development of educational opportunities, and steady growth in
population and wealth, the few hospitals built at that time were inadequate. As
far as hospital progress is concerned, the 18th century was not only decidedly
uneventful; it was a period of regression. The full revival did not begin until well
after the middle of the 19th century.
Antony van Leeuwenhoek (1632–1723) succeeded in making some of the
most important discoveries in the history of biology. Although van
Leeuwenhoek did not invent the first microscope, he was able to perfect it. His
many discoveries included bacteria, free-living and parasitic microscopic
protists, sperm cells, blood cells, and microscopic nematodes. His research
opened up an entire world of microscopic life. Often referred to as the “father
of microbiology,” van Leeuwenhoek had a pronounced influence on the
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creation of the sciences of cytology, bacteriology, and pathology. His
discoveries have forever improved patient care.
46

▸ EARLY HOSPITALS IN THE UNITED STATES
Manhattan Island claims the first account of a hospital in the New World, a
hospital that was used in 1663 for sick soldiers. Fifty years later, in
Philadelphia, William Penn founded the first almshouse established in the
American colonies. The Quakers supported the almshouse, which was open
only to members of that faith. However, Philadelphia was rapidly growing and
in need of a public almshouse. Such an institution for the aged, the infirm, and
persons with mental illness was established in 1732. The institution later
became the historic Old Blockley, which, in turn, evolved into the Philadelphia
General Hospital.
Philadelphia was the site of the first incorporated hospital in America, the
Pennsylvania Hospital. Dr. Thomas Bond wanted to provide a place where
Philadelphia physicians could treat their private patients. With the aid of
Benjamin Franklin, Dr. Bond sought a charter for the Pennsylvania Hospital,
which was granted by the Crown in 1751. Franklin assisted in designing the
hospital. It included a central administration unit and two wings opened to the
public. The first staff consisted of Dr. Phineas Bond, Dr. Lloyd Zachary, and
the founder, Dr. Thomas Bond, all of whom gave their services without
remuneration for 3 years.
Rich in the history of hospitals, Philadelphia is credited with the first quarantine
station for immigrants (created in 1743) and the first lying-in hospital
(established in 1762), a private institution owned by the noted obstetrician
William Shippen. The quality of American health care seemed to be improving.
However, by 1775 Dr. John Jones published a book calling attention to the
frightful conditions that existed in hospitals. He charged that hospitals abroad
were crowded far beyond capacity and that Hotel-Dieu of Paris frequently
placed three to five patients in one bed—putting the convalescent with the
dying and fracture cases with infectious cases. He estimated that one fifth of
the 22,000 patients cared for at Hotel-Dieu died each year. Wounds were
washed daily with a sponge that was carried from patient to patient. The
infection rate was said to be 100%, and mortality after amputation was as high
as 60%. Jones’s call to action had a positive effect on American health care.
As late as 1769, New York City, with nearly 300,000 inhabitants, was without
hospitals. In 1771, a small group of citizens, Dr. Jones among them, formed
the Society of the New York Hospital and obtained a grant to build a hospital.
The society purchased a five-acre site and made plans for a model structure
that would allow a maximum of eight beds per ward and provide improved
ventilation. The hospital fell into the hands of the British troops during the
American Revolution and was used as a barracks and military hospital.
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During postwar reconstruction, the New York Hospital broadened its services.
Under the supervision of Dr. Valentine Seaman, the hospital began providing
instruction in nursing, and in 1779, it introduced vaccination in the United
States and established an ambulance service. Other early American hospitals
of historic interest include the first psychiatric hospital in the New World,
founded in Williamsburg, Virginia, in 1773, and a branch of federal hospitals
created by the passage of the U.S. Marine Hospital Service Act in 1798. Under
this act, two marine hospitals were established in 1802: one in Boston and
another in Norfolk, Virginia.
The Massachusetts General Hospital (MGH), which pioneered many
improvements in medicine, originated in Boston. Its first patient, admitted in
1821, was a 30-year-old sailor.
More than a decade earlier, two Boston doctors had appealed to the city’s
“wealthiest and most influential citizens” to establish a general hospital.
The War of 1812 delayed the dream, but on July 4, 1818, the cornerstone
was finally laid. The original building, designed by Boston’s leading
architect, Charles Bulfinch, is still in use. One of the world’s leading centers
of medical research and treatment has grown up around it. The original
domed operating amphitheater, where anesthesia was first publicly
demonstrated in 1846, is now a Registered National Historic Landmark.
MGH has achieved countless medical milestones, including the first
successful reattachment of a human limb.
In 1832, the Boston Lying-In Hospital opened its doors to women unable to
afford in-home medical care. It was one of the nation’s first maternity hospitals,
made possible because of fundraising appeals to individuals and charitable
organizations.
Despite the increased number of institutions providing care for the sick, the
first half of the 19th century stands as a dark period in hospital history.
Surgeons of the day had sufficient knowledge of anatomy to lead them to
perform many ordinary operations, and as a result, more surgery was most
likely undertaken than during any previous era. Although the medieval and
ancient surgeons had sought to keep wounds clean, even using wine in an
attempt to accomplish this purpose, 19th-century surgeons believed
suppuration (the production and discharge of pus) to be desirable and
encouraged it. Hospital wards were filled with discharging wounds, which
made the atmosphere offensive enough to warrant the use of perfume. Some
patient wards had multiple patients with multiple conditions allowing for the
spread of infections, as depicted in FIGURE 1-1.
4
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FIGURE 1-1 Patient ward.
© chippix/Shutterstock
Nurses of that period are said to have used snuff to make conditions tolerable.
Surgeons wore their operating coats for months without washing. The same
bed linens served several patients. Pain, hemorrhage, infection, and gangrene
infested the wards. Mortality from surgical operations rated as high as 90–
100%. Nathan Smith, in the second decade of that century, advocated a
bichloride of mercury solution for reducing infection, but his ideas were
ignored.
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▸ LATE 19TH CENTURY RENAISSANCE
Florence Nightingale, the famous English nurse, began her career by training
at Kaiserswerth on the Rhine in a hospital and deaconess home established in
1836 by Theodor Fliedner and his wife. Florence Nightingale wrote
disparagingly of her training there, particularly of the hygiene practiced.
Returning to England, she put her own ideas of nursing into effect and rapidly
acquired a reputation for efficient work.
By 1854, during the Crimean War, the English government, disturbed by
reports of conditions among the sick and wounded soldiers, selected Florence
Nightingale as the one person capable of improving patient care. Upon her
arrival at the military hospital in Crimea with a small band of nurses whom she
had assembled, she found that the sick were lying on canvas sheets in the
midst of dirt and vermin. There was neither laundry nor hospital clothing and
beds were made of straw. She proceeded to establish order and cleanliness.
She organized diet kitchens, a laundry service, and departments of supplies,
often using her own funds to finance her projects. Ten days after her arrival,
the newly established kitchens were feeding 1,000 soldiers. Within 3 months,
10,000 soldiers were receiving clothing, food, and medicine. As a result of her
work, the death rate substantially declined. She has been credited with
observing:
A good nursing staff will perform their duties more or less satisfactorily
under every disadvantage. But while doing so, their head will always try to
improve their surroundings, in such a way as to liberate them from
subsidiary work, and enable them to devote their time more exclusively to
the care of the sick.
Because of her organizational skills, many consider Florence Nightingale to be
the first true healthcare administrator. Later she extended her administrative
duties to include planning the details of sanitary engineering in a new military
hospital.
As the field of nursing continued to progress, so did medicine. Dr. Crawford
Williamson Long first used ether as an anesthetic in 1842 to remove a small
tumor from the neck of a patient. He did not publish any accounts of his work
until later. However, the discovery of an anesthetic is often attributed to Dr.
W.T.G. Morgan, a dentist who developed sulfuric ether and arranged for the
first hospital operation under anesthesia at MGH in 1846. Although not put to
practical use immediately, ether soon took away some of the horror that
hospitals had engendered in the public mind. Sir James Simpson first used
chloroform as an anesthetic in 1847 for an obstetrical case in England.
5
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The year 1847 was the year that the American Medical Association (AMA) was
founded under the leadership of Dr. Nathan Smith Davis. The association,
among its main objectives, strived to improve medical education, but most of
the organization’s tangible efforts in education began at the close of the
century. The AMA was a strong advocate for establishing a code of ethics,
promoting public health measures, and improving the status of medicine.
The culmination of Florence Nightingale’s work came in 1860, after her return
to England. There, she established the Nightingale School of Nursing at the
St. Thomas’s Hospital. From this school, a group of 15 nurses graduated in
1863. They later became the pioneer leaders of nurse training.
In 1886, the Royal British Nurses’ Association (RBNA) was formed. The RBNA
worked toward establishing a standard of technical excellence in nursing. A
charter granted to the RBNA in 1893 denied nurses a register, although it did
agree to maintain a list of persons who could apply to have their name entered
thereon as nurses.
The first formally organized American nursing schools were established in
1872 at the New England Hospital for Women and Children in Boston
(Brigham and Women’s Hospital), and then in 1873 at Bellevue, New Haven,
and Massachusetts General Hospitals. In 1884, Alice Fisher was appointed as
the first head of nurse training at Philadelphia Hospital’s (renamed as the
Philadelphia General Hospital in 1902) nurses’ training program. She had the
distinction of being the first Nightingale-trained nurse recruited to Philadelphia
upon recommendation by Florence Nightingale.
Mrs. Bedford Fenwick, a nurse leader in the English nurse registration
movement, traveled to Chicago in 1893 to arrange for nursing exhibits to be
displayed in the women’s building at the World’s Fair.
This event showcased America’s social, cultural, and scientific advances
and its growing cultural parity with Western Europe. This was the first
major exposition in which women played a prominent role. Integral to the
fair was a series of Congresses that provided an international platform for
discussion of social issues. The Congress on Hospitals, Dispensaries, and
Nursing, a section of the International Congress of Charities, Correction,
and Philanthropy, particularly focused on health care issues.”
As part of the Congress on Hospitals and Dispensaries, the nursing section
included papers on establishing standards in hospital training schools, the
establishment of a nurses association, and nurse registration. The group
formulated plans to improve nursing curriculum and hospital administration in
the first concerted attempt to improve hospitals through a national
organization.
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7
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Progress in Infection Control
Dr. Ignaz Philipp Semmelweis of Vienna, Austria, unknowingly laid the
foundation for Louis Pasteur’s later work. In 1847, at the Vienna Lying-In
Hospital, Europe’s largest teaching obstetrical department, he boldly declared
that the alarming number of deaths from puerperal fever was a result of
infection transmitted by students who came directly from the dissecting room
to take care of maternity patients. “Puerperal fever is due to an infection, most
often of the placental site within the uterus. If the infection involves the
bloodstream, it constitutes puerperal sepsis.” Semmelweis noted that Division
1 of the hospital was a medical student–teaching service and Division 2 was
used for midwife trainees. Maternal deaths for Division 1 averaged 10%,
whereas the rate for Division 2 averaged 3%. Medical students performed
autopsies; midwives did not. As a result of these findings, an order was posted
on May 15, 1847, requiring all students to scrub their hands in chlorinated lime
until the cadaver smell was gone. The order was later revised to include hand
washing between patients.
Despite having made bitter enemies, Semmelweis had the satisfaction of
seeing the mortality rate in his obstetrical cases drop from 9.92% to 1.27% as
a result of the aseptic technique he developed. A few years later, Louis
Pasteur, a French chemist and microbiologist, demonstrated the scientific
reason for Semmelweis’s success when he proved that bacteria were
produced by reproduction and not by spontaneous generation, as was then
generally believed. From his work came the origin of modern bacteriology and
clinical laboratories.
Despite the attention given to the control of infections in hospitals, adherence
to hand-washing protocols continues to be a problem well into the 21st
century, as noted by the following reality check and depicted in FIGURE 1-2.
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FIGURE 1-2 Patient Room.
© Monkey Business Images/Shutterstock
FAILURE TO FOLLOW HAND HYGIENE GUIDELINES
Sheri was a healthy 30-year-old female until she suddenly experienced neck
pain with a numbness radiating down her left arm. She was diagnosed with
cervical rib outlet syndrome and agreed to a surgical procedure by Dr.
Botchit for removal of her first cervical rib. Sheri was admitted to a
postsurgical care unit at a major teaching hospital. Upon entering her
assigned four-bed room, she and her husband Bill observed a bloody
suction bottle hanging from the wall at the head of her assigned bed. The
bed rails were rusting with dried bloody body fluids from a previous patient.
They were uneasy about having a surgical procedure performed but they
decided the physician’s skills were more important than an unclean room.
Bill commented, “Well, at least the sheets appear clean.”
Elda, the first patient on the left upon entering the room greeted Sheri and
Bill. She said, “The room isn’t very clean is it? Could you watch out for the
nurses?” She then smiled as she removed Tylenol from her bedside table.
She took a few and said, “I don’t want my doctor to cancel my surgery, so I
have to lower my temperature before the nurses retake my temperature. I
think I have an infection. I have waited so long to get my surgery scheduled.
I am just so worried my surgery will be canceled.”
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The morning following surgery, a third-year resident entered the room with
three first-year residents and beginning with Elda, examined each of four
postsurgical patients. Elda was a postsurgical amputee, who was later
diagnosed with a staph infection. Sheri was the fourth patient to be
examined in the room. Even though each of the patient’s wounds had been
examined and dressings changed, the physicians failed to change their
surgical gloves between patients. Following examination of Sheri, they
proceeded to remove their gloves and tossed them in Sheri’s bedside
wastebasket. They then washed their hands at the only sink in the room,
which was by Sheri’s bedside.
Sheri’s temperature began to rise. Bill asked if a wound culture had been
taken. Carol, the nurse manager after checking Sheri’s chart said, said, “No
culture was ordered.” He asked, “Can you please have a culture ordered?”
The nurse replied that she would call Dr. Green to see if he would order a
blood culture.” Bill asked, “Who is Dr. Green?” Carol replied, “Dr. Green is
covering for Dr. Botchit while he is on vacation. Dr. Botchit left on a family
skiing trip the day after surgery to Aspen, Colorado.”
Bill learned the following day that the blood tests came back positive for a
staph infection and learned that no antibiotics had been prescribed by Dr.
Green. Bill became increasingly concerned about the lack of care and went
back to the nursing station to describe his concern about the lack of
treatment for Sheri. Carol suggested that he call Dr. Green.
Bill placed a call to Dr. Green and relayed his concern about his wife’s
deteriorating health. Dr. Green returning Bill’s call said, “I hear you are
unhappy with my care. I am merely providing coverage for Dr. Botchit. I
have my own patients to be concerned with and treat.” Bill replied, ”Well if
you are covering for another physician you need to address my wife’s
infection.” Dr. Green replied, “I am doing a favor for Dr. Botchit by covering
his patients as well as mine. I will get to the hospital when I can!”
Upon returning to his wife’s bedside, Sheri looked up at him and said, “The
priest was here and administered last rites to me.” Looking at his mother-in-
law, who was trying to be strong, holding back the tears, Bill devotedly said,
“I will fix this.” He called Dr. Field, who he knew was a physician educator at
the medical center, and explained his concerns. Dr. Field said, “I can help. I
will get a team of infectious disease specialists to Sheri’s bedside. They are
the best in the city, probably the world. But please do not use my name in
any dispute that you may have with Dr. Botchit or Dr. Green.” Sheri survived
but the staph infection had taken its toll on her immune system.
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Sheri and Bill never thought much about it at the time, but in hindsight,
Elda’s infection was most likely the contributing factor to the staph infections
that eventually affected the other three patients in the room. History
repeated itself. Despite being adopted by the hospital, the CDC hand-
washing guidelines, which could have helped prevent the infection, were not
followed,.
This reality check illustrates how the failure to follow established protocols in
the prevention of infections can have disastrous consequences for patients.
Progress in the delivery of patient care can move forward only as long as
complacency does not stymie progress.
This case also provides an important lesson for patients who treat
themselves, masking their physical symptoms, as in this case where the
patient took Tylenol to hide her fever, an indicator that the patient may have
an active infection. Staff should be alert to patients who self-treat and
confiscate all home and store bought medications upon admission to the
hospital. The lessons here also apply to family members, who must not
honor patient requests for medications.
This reality check serves as a reminder that history continues to repeat itself.
Strict adherence to CDC guidelines and hospital policy must become the norm
and not the exception for acceptable hand hygiene in order to prevent the
spread of infection by both caregivers and patients. The Joint Commission’s
(TJC) 2017 Hospital Accreditation Standards recognize the importance of
complying with hand hygiene guidelines. The standards require hospitals and
other accredited TJC organizations to follow current CDC or World Health
Organization guidelines for hand hygiene. When hand-washing guidelines
have to be declared a TJC national patient safety goal, it would appear that
caregivers have much to learn from Dr. Semmelweis, who determined in 1847
that poor hand-washing technique can be attributed to being a major cause of
hospital-acquired infections. Dr. Ernst von Bergmann’s introduction of steam
sterilization in 1886 and Dr. William Stewart Halsted’s introduction of rubber
gloves in 1890 aided in reducing the incidence of hospital-acquired infections.
By the end of the century, Dr. Joseph Lister carried Pasteur’s work a step
further and showed that wound healing could be hastened by using antiseptics
to destroy disease-bearing organisms and by preventing contaminated air
from coming into contact with these wounds. Lister was not content with
obtaining better results in his own surgical cases; he devoted his life to proving
that suppuration is dangerous and that it could be prevented or reduced by the
use of antiseptics to destroy disease-bearing organisms. Despite his
successful work and eloquent pleas, his colleagues persisted in following their
old methods. Years after his discovery, they continued to deride him and his
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technique, which consisted of spraying carbolic solution so profusely about the
operating room that both surgeons and patients were drenched. The use of
antiseptics and the techniques of using them continued to improve. Eventually
even the skeptics were impressed by the clinical results in reducing infection
rates. Surgeons, at last, realized that they could undertake major operations
with less fear of morbidity and mortality.
Discovery of Anesthesia
As the 19th century neared its close, surgery was becoming more frequent.
The discovery of anesthesia and the principle of antiseptics were two of the
most significant influences in the development of surgical procedures in the
modern hospital. Anesthesia improved pain control, and hygiene practices
helped reduce the incidence of surgical site infections. Although patients did
not immediately flock to hospitals as a result of these discoveries, these
innovations set the stage for the remarkable growth of the 20th century.
Modern Hospital Laboratory
The study of cytology originated around the middle of the 19th century and
influenced the development of the modern hospital clinical laboratory. The cell
theory was first advanced in 1839 by the German anatomist Theodor Schwann
and was further developed by Dr. Jacob Henle, whose writings on microscopic
anatomy appeared in 1850. Rudolf Virchow, known as the Father of
Pathology, was the most eminent proponent of the cell theory. His studies in
cellular pathology supported further research in the etiology of disease.
Changing Hospital Structure
With nursing, anesthesia, infection control, and cytology under way, a change
in hospital structure began in the last quarter of the 19th century. Buildings of
the Civil War days were still in use, with as many as 25 to 50 beds in a ward
with little provision for segregating patients. In New York City in 1871,
Roosevelt Hospital was constructed on the lines of a one-story pavilion with
small wards, and this set the style for a new type of architecture that came to
be known as the American plan. A noteworthy feature was ventilation by
means of openings in the roof, which was an improvement in hospital
construction. Hospitals had been characterized by a lack of provision for
ventilation. Dr. W.G. Wylie, writing in 1877, said he favored this type of
building, but he advocated that it be a temporary structure only, to be
destroyed when it became infected.
As noted in the following reality check, hospital construction and building
maintenance programs are essential in preventing the spread of infections.
All caregivers must be observant of the cleanliness of the environment within
which they care for patients. FIGURE 1-3 illustrates the not so uncommon
finding of soiled vents and ducts by those who inspect hospitals. Such findings
contribute to the spread of infections between staff and patients. Caregivers
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who observe such issues should notify designated staff members who are
responsible for ensuring the correction of such environmental deficiencies.
FIGURE 1-3 Soiled vents and ducts.
© decoplus/Shutterstock
STERILE SUPPLY STORAGE
Mark was assigned a 3-day survey at Anytown Medical Center (AMC).
During a tour of the hospital’s facilities, Robin, AMC’s survey coordinator,
Bill, the building engineer, and Jack, the maintenance supervisor,
accompanied Mark. While conducting the building tour, Mark had asked to
see the neonatal intensive care unit (NICU). After being introduced to Helen,
the NICU nurse manager, Mark and Robin gowned up to enter into the
nursery with Helen. Bill and Jack waited in the hospital corridor. Mark
noticed during his tour of the nursery a door marked “Sterile Supply
Storage.” Mark looked at Helen and asked, “Can we enter the storage
room?” Helen replied, “Sure thing.” Upon entry to the room Mark observed
that cardboard boxes marked “sterile supply” were stored on the floor. He
glanced up at the ceiling tiles and noticed that they were damp and had
green and black mold. Mark asked for a flashlight to look at the air vents and
ducts. He observed a significant amount of mold on the exhaust vents. He
shined the flashlight up into the vent and observed that the air ducts had a
buildup of mold. Robin, somewhat concerned, said, “We can get this all
cleaned up before the end of the survey.” Mark said, “I am also concerned
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that the sterile supplies stored on the floor, even though in cardboard boxes,
have been compromised. The cardboard boxes are damp from mopping of
the floor. Let’s go out to the corridor and speak to Bill and Jack. After Mark
described what he saw in the clean storage area, Bill replied, “Oh, there was
a toilet that overflowed in a patient bathroom a few weeks ago in the floor
above. Jack interrupting said, “Well, I do not recall seeing a maintenance
slip from the NICU describing the problem.”
The risks of infection in healthcare settings require healthcare organizations
to provide continuing education and training for caregivers. Documentation
of in-service training should be placed in employee personnel files. It is
important for managers to be alert to and correct hazardous conditions
observed in the working environment. Both hospital surveyors (e.g., TJC)
and state inspectors, as part of their training, are required to observe the
working environment and employees who may breach infection control
protocols, such as following proper hand hygiene prior to caring for each
patient. Breaches in protocol that are observed are included in both state
and TJC formal reports pertaining to the hospital’s compliance with infection
control standards. Hospitals are required to develop, implement, monitor,
and improve the environment to help prevent the spread of infections.
Changing Hospital Function
Promoted by the wealth of bacteriologic discoveries, hospitals began to care
for patients with communicable diseases. During the decade from 1880 to
1890, the tubercle bacillus was discovered, and Louis Pasteur developed
vaccines for anthrax and rabies. He also developed the process for
pasteurization. Robert Koch isolated the cholera bacillus, diphtheria was first
treated with antitoxin, the tetanus bacillus and the parasite of malarial fever
were isolated, and inoculation for rabies was successful. “On March 24, 1882,
Robert Koch announced to the Berlin Physiological Society that he had
discovered the cause of tuberculosis.” Treatment of patients with some of
these infections necessitated isolation, and hospitals were the logical place for
observation of communicable diseases. Consequently, at the end of the
century, in addition to their many surgical cases, hospitals were crowded with
large numbers of patients suffering from scarlet fever, diphtheria, typhoid, and
smallpox, all of which were contagious diseases.
Discovery of the X-Ray
Wilhelm Conrad Röntgen’s discovery of the X-ray in 1895 was a major
scientific achievement. The first use of the X-ray symbolizes the beginning of
the period that necessitated equipment so costly that the average practitioner
could not afford to install it. The natural result was the founding of community
hospitals in which physicians could jointly use such equipment. Nineteenth-
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century inventions also included the clinical thermometer, the laryngoscope,
the Hermann von Helmholtz ophthalmoscope, and innumerable other aids that
have led to more accurate diagnoses.
Although the medical and nursing professions of the later half of the 19th
century did not reap the full reward of their discoveries, they provided the 20th
century with a firm foundation upon which to build.
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▸ 20TH-CENTURY PROGRESS
The treatment of metabolic diseases and nutritional deficiencies, the
importance of vitamins, and the therapy of glandular extracts played an
important role in the advancement of medicine in the 20th century. As early as
1906, Frederick Gowland Hopkins began investigations into vitamins. Two
years later, Carlos Finlay produced experimental rickets by means of a
vitamin-deficient diet. This, in turn, was followed by Kurt Huldschinsky’s
discovery that rickets could be treated successfully with ultraviolet light. In
quick succession came Casimir Funk’s work with vitamins, Elmer McCollum’s
discovery of vitamins A and B, Joseph Goldberger’s work in the prevention of
pellagra, and Harry Steenbock’s irradiation of foods and oils. Other
outstanding contributions to the science of nutrition include Frederick Banting’s
introduction of insulin in 1922, the studies in anemia carried out by Dr. George
Hoyt Whipple and Dr. Frieda Robscheit-Robbins, a pathologist who worked
with Dr. Whipple. This led to Dr. George R. Minot and Dr. William P. Murphy’s
successful treatment of pernicious anemia. This achievement was considered
a major advancement in the treatment of noninfectious diseases. As a result of
their research, Hoyt, Minot, and Murphy were awarded the Nobel Prize in
Physiology or Medicine.
Dr. Willem Einthoven invented the electrocardiograph (ECG) in 1903. The
machine measures the electrical changes that occur during contractions of the
heart muscle. The ECG records these graphically, thus allowing the physician
to diagnose abnormalities in a patient’s heartbeat. He coined the term
electrocardiogram for this process, marking the beginning of an era of
diagnostic and therapeutic aids. Shortly after that invention came the first
basal metabolism apparatus, then the Wassermann (August Von) test in 1906,
and tests for pancreatic function. Invention of the fluoroscopic screen followed
in 1908. Subsequently, the introduction of blood tests and examinations of
numerous body secretions required well-equipped and varied laboratories.
Concurrent with this progress in the field of internal medicine was the
introduction of radium for the treatment of malignant growths, increasing the
use of the clinical laboratory for microscopic examination of pathologic tissue
and developments in antibiotics. The result of these many new aids was the
conquest of diseases formerly regarded as incurable, which in turn, resulted in
improved public confidence in hospitals. The discovery of the structure of DNA
is by far one of the most famous scientific discoveries of the 20th century.
The discovery in 1953 of the double helix, the twisted-ladder structure of
deoxyribonucleic acid (DNA), by James Watson and Francis Crick marked
a milestone in the history of science and gave rise to modern molecular
biology, which is largely concerned with understanding how genes control
the chemical processes within cells. In short order, their discovery yielded
ground-breaking insights into the genetic code and protein synthesis.
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During the 1970s and 1980s, it helped to produce new and powerful
scientific techniques, specifically recombinant DNA research, genetic
engineering, rapid gene sequencing, and monoclonal antibodies,
techniques on which today’s multi-billion dollar biotechnology industry is
founded. Major current advances in science, namely genetic fingerprinting
and modern forensics, the mapping of the human genome, and the
promise, yet unfulfilled, of gene therapy, all have their origins in Watson
and Crick’s inspired work.
The 20th century was also characterized by rapid growth in nursing education.
The earlier schools were maintained almost entirely to secure nursing service
at a low cost. The nurse’s duties were often menial, hours long, and classroom
and laboratory study almost entirely lacking. Nurses themselves had begun to
organize for educational reforms. By 1910, training increasingly emphasized
theoretical studies. This movement was largely a result of the work of
organizations such as the American Nurses Association and the National
League for Nursing, along with the organization of the Committee on the
Grading of Nursing Schools. In 1943, the U.S. Cadet Nurse Corps was
organized to spur enrollment of student nurses in nursing schools to help meet
the shortages caused by enlistment of graduate nurses for military service. As
a result, efforts increased to train practical nurses and nurses’ aides in order to
relieve the shortage of graduate nurses.
Reform in medical education began early in the century and was almost wholly
a result of the efforts of the Council on Medical Education and Hospitals, which
was established in 1905 by the AMA. Immediately after its organization, this
council began inspection of medical schools. The council, by establishing
standards and by grading the schools, brought about gradual elimination of
most of the unethical, commercial, and unqualified institutions.
A great stimulus to the profession of hospital administration has been the work
of the American Hospital Association. Organized in 1899 as the Association of
Hospital Superintendents, it took its present name in 1907. Since its inception,
the organization has concerned itself particularly with the problems of hospital
management. As early as 1910, the association held educational programs for
hospital chief executive officers and trustees. The American College of
Surgeons was founded in 1913 under the leadership of Dr. Franklin H. Martin,
the first director general of the organization. One of the most dramatic
achievements of the American College of Surgeons was the hospital
standardization movement that began in 1918. The founders drew up what
was known as “The Minimum Standard,” a veritable constitution for hospitals,
setting forth requirements for the proper care of the sick. An annual survey of
all hospitals having 25 or more beds made the standard effective. When the
first survey was conducted, only 89 hospitals in the United States and Canada
could meet the requirements.
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The hospital standardization movement focused its efforts on the patient, with
the goal of providing the patient with the best professional, scientific, and
humanitarian care possible. The growth of this movement is remarkable, given
that participation in hospital standardization programs is voluntary. Following
several name changes over the years, The Joint Commission today conducts
unannounced accreditation surveys, with emphasis on ongoing improvements
in the quality of patient care.
The years following 1929 will long be remembered as one of the most trying
periods in the history of hospitals. Due to critical economic conditions, many
institutions found it difficult to keep their doors open. A declining bed
occupancy and an ever-increasing charity load, coupled with steadily
decreasing revenues from endowments and other sources of income, created
hardships on private institutions. Fortunately, however, every economic crisis
brings forth new ideas and means and methods of organization to benefit
humanity.
In the latter half of the 20th century, competition among hospitals began to
grow as for-profit hospital chains began to spring up and compete with
nonprofit organizations. Advances in medical technology, such as computed
tomography (CT), magnetic resonance imaging (MRI), positron emission
tomography (PET) scanners, and robotic surgery, as well as an ever-growing
list of new medications, have revolutionized the practice of medicine. During
this period, less invasive surgical procedures and a trend toward care in
outpatient settings has reduced the need for lengthy stays in hospitals and
various long-term care facilities. Laparoscopic surgery, performed through one
or more small incisions using small tubes and tiny cameras and surgical
instruments, has proven to be one of the remarkable movements forward in
the history of surgical procedures.
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▸ HEALTH CARE AND HOSPITALS IN THE 21ST CENTURY
So how safe is your hospital? Two new rating systems help you check
before you check in. Hospital safety score (hospitalsafetyscore.org),
launched in June (2012), assigns grades of A, B, C, D or F to more than 2,600
U.S. hospitals based on 26 safety measures and standards—from hand-
washing policies to foreign objects left in body cavities after surgery. Nearly
half of the hospitals received a C or lower.
—Bill Hogan
The struggle for hospitals to survive continues well into the 21st century but
the news is not always kind. In the nation’s capital, one would dream that it
would represent the “model city of hope” for the healthcare system. But all to
often we learn of its failures and not its progress. Howard University Hospital,
for example, opened its doors in 1863 as Freedman’s hospital, and it provided
care to the freed African American slaves. It soon “became an incubator for
some of the brightest African American slaves.” But over the past decade, the
once-grand hospital that was the go-to place for the city’s middle-class black
patients has been beset by financial troubles, empty beds, and an exodus of
respected physicians and administrators, many of whom said they are fed up
with the way it is run.” This follows the closure of DC General Hospital, which
many had hoped would be rebuilt. Other hospitals, including the VA system,
have struggled and continue to struggle, some even to survive. The overflow
of patients into the city’s remaining hospitals affects the ability of those
hospitals to handle the needs of patients. Many physicians now tell their
patients, “My goal is to get you in and out of the hospital as fast as I can. I
don’t want you to get sicker.” The challenges remain as history repeats itself.
RURAL AMERICA’S DYING HOSPITALS
. . . Nearly 80 have closed since 2010, including 9 in Tennessee, more than
in any state but Texas. Many more are considered fragile—downstream
victims of federal health policies, shifts in medical practice, and the limited
tolerance of distant corporate owners for empty beds and financial losses.
In every rural community, the ripple effects of a lost hospital are profound,
reverberating beyond the inability of would-be patients to get immediate
care.
—Amy Goldstein, The Washington Post, April 12, 2017
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The delivery of health care in the modern hospital continues to be the
revolutionary product of a long and arduous struggle. The continuing stream of
new medicines and treatments, as well as legal, financial, and human
resource issues, continues to test the healthcare system. Many of today’s
healthcare challenges have carried over from the 20th century. The challenges
include exorbitant malpractice awards, excessive insurance premiums, high
expectations of society for miracle drugs and miracle cures, fairly balancing
the mistakes of caregivers with the numerous successful events, negative
press that increases public fear, and numerous ethical dilemmas involving
abortion, human cloning, physician-assisted suicide, how to fairly distribute
limited resources, and the dwindling number of rural hospitals, are but a few of
the challenges of the 21st century.
According to a study written by Sy Mukherjee in ThinkProgress, there is an
increased risk of dying in rural hospitals.
Critical access hospitals (CAHs) are medical providers located in America’s
most isolated regions, serving rural communities that do not otherwise
have easily available access to care. Since the closest alternatives to these
hospitals are usually over 35 miles away, they provide an essential
resource for Americans living in secluded communities—and therefore
receive enhanced funding from the federal government to carry out their
work. But according to a Harvard School of Public Health study, death
rates at these hospitals are significantly higher than national averages—
and are on the rise.
As advances in medicine rapidly move the nation’s healthcare system in the
direction of high-cost care and treatment, small rural hospitals are increasingly
unable to meet the challenges of both procuring expensive capital equipment
and attracting qualified specialists. This, in turn, is leading to the demise of
rural hospitals’ ability to provide the more complex care available in modern
medical centers.
Translational Medicine
Translational medicine began to be recognized as a significant development at
the end of the 20th century and well into the 21st century. Both the researcher
and the practitioner began to better understand the importance of knowing
each other’s contribution in the healing process.
The translation of biomedical discovery into clinical benefit is the essence
of translational medicine, which continued to experience remarkable
growth in 2012. The University of Dundee, Scot., for example, received
almost £12 million ($19.2 million) for the completion of a Centre for
Translational and Interdisciplinary Research, and a £24 million ($38.4
million) Institute for Translational Medicine was slated for development in
Birmingham, Eng. Scientists continued to work to coordinate the
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application of new scientific knowledge in clinical practice with basic
observations and questions in the laboratory.
Minimally Invasive Surgery
The ever-evolving precision of minimally invasive surgery (MIS) will catapult
medicine into a limitless future of exotic discoveries. MIS allows physicians to
use a variety of techniques to operate with less damage to body tissues than
with open surgery and is believed by some surgeons to be more noteworthy
than the discovery of anesthesia. MIS is associated with less pain, a shorter
hospital stay, fewer complications and medical errors, while improving the
accuracy of complex surgical procedures. Decision making during surgery
often involves thousands of pieces of information that are considered during a
surgical procedure. This can lead to increased physician fatigue and the
possibility of human error. MIS reduces the fatigue factor by assisting the
surgeon in the decision-making process by reducing the time required for a
surgical procedure, and the surgeon concentrates on the surgical skills
necessary for completing a successful surgery. The bells and whistles and
blinking lights become less of a distraction, by allowing the surgeon to
concentrate on the surgical field (e.g., patient’s abdomen).
Robotic surgery provides a magnified 3-D view of the surgical site and helps
the surgeon operate with precision, flexibility, and control. The popular da
Vinci System robotic equipment is used for cardiac, colorectal, general,
gynecologic, head and neck, thoracic, and urologic surgical procedures. It
allows surgeons to operate through several small incisions with enhanced
vision, precision, and control inside the human body.
Surgical Simulation Training
Advances in surgical simulation training (SST) will enhance the training of
residents, enabling them to transition more effectively to performing more
precise surgical procedures with fewer errors and improved patient outcomes.
Pilots are trained in a simulator before ever flying a plane. Surgeons have
historically been in the dark stages of SST, even though “they are in charge of
carrying out the procedures that may either save or kill the patient at hand.”
The patient will one day no longer be the experimental subject in the hands of
a surgeon-in-training. Surgical simulation, so long waited for, will produce a
generation of surgeons who have practiced surgical procedures, just as pilots
do before flying a plane.
Social Media Impacts on Caregivers
The advent of social media has raised concern among caregivers and
hospitals. Patients post both positive and negatives reviews on the World
Wide Web (e.g., Healthgrades, Facebook, GooglePlus, Twitter, YELP,
ZocDoc). Reviews may include long waits and rude staff members, which can
affect a physician’s social media ratings. Patients who complete multiple forms
prior to an office visit often discover the physician has not reviewed them.
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Instead, the physician conducts a hurried review of the documents at the time
of a patient’s scheduled appointment, reviewing with patients the ailments with
which they are familiar and not addressing or leaving less time to discuss the
patient’s current concerns, reason for being there, and the treatment plan.
Unfortunately, patients who experience long waits to see their physicians often
tarnish their physician’s reputation by posting negative remarks. It is not the
wait time that should be judged. It is the skills of a physician in diagnosis and
presentation of treatment options that makes the difference in the quality of
life. Not only are physicians impacted by the challenges of social media, but
hospitals are also concerned with their image in the community. All care
organizations and caregivers must be sensitive to the fact that social media
will not go away, and the concerns of patients need to be addressed in a
positive way by addressing the concerns of the community.
National Health Insurance
The Patient Protection and Affordable Care Act (PPACA), passed by
Congress and signed by President Barack Obama on March 23, 2010, was
designed to ensure that more Americans receive healthcare benefits. The
costs, however, associated with national health insurance continue to rise.
Insurance premiums have risen by as much as 10% in 2017 for those who are
not eligible for subsidies. “Aetna, Humana and United HealthCare Group said
they would stop selling Obamacare policies in most states next year, citing
financial losses due to a flood of older, sicker enrollees and not enough young,
healthy people to offset the costs.”
As healthcare politics continue to rage on in Congress, the greatest health
challenge of the 21st century requires that each member of society take a
more responsible and proactive role in his or her health and well-being by
maintaining a healthy lifestyle.
Boutique Medicine
The problem of accessibility to care is further exacerbated by an increasing
number of physicians who turn to boutique medicine, a plan of care whereby a
patient pays an annual retainer fee in exchange for expedited access to a
physician for health care. As a result, physicians who elect to practice
boutique medicine find it necessary to limit the number of patients they can
treat due to the need to be readily available to patients in their practice. In
other words, increased access leads to fewer patients, and arguably, better
care for those who can afford the fees.
Medical Errors Plague Hospitals
The uncanny number of medical errors described in the following news feature
quote illustrates the depth of the failure to understand what history has taught
us.
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Hospital-acquired infections (HAIs) continue to be a major concern in
healthcare facilities. The results of a project known as the HAI Prevalence
Survey were published in 2014.
The Survey described the burden of HAIs in U.S. hospitals, and reported
that, in 2011, there were an estimated 722,000 HAIs in U.S. acute care
hospitals. . . . Additionally, about 75,000 patients with HAIs died during
their hospitalizations. More than half of all HAIs occurred outside of the
intensive care unit.
In a special issue of Emerging Infectious Diseases, Dr. William R. Jarvis,
Associate Director for Program Development, Division of Health Care Quality
Promotion (currently Hospital Infections Program), Centers for Disease Control
and Prevention, writes:
Over the past two decades, acute-care facilities have become smaller and
fewer, but the hospitalized patient population has become more severely ill
and more immuno-compromised and thus at greater risk for hospital-
acquired infections. At the same time, the proportion of the U.S. population
65 years of age has increased, as have the number of long-term care
facilities and the number of beds in these facilities. This trend is expected
to continue for the next 50 years. . . .
Infection control personnel will need to expand their efforts to match the
expansion of the healthcare delivery system. Enhanced administrative
support for programs to prevent infections and medical errors will be
needed if we are to reduce the risk of infection and other adverse events
and improve the quality of care in the entire spectrum of health-care
delivery. Now, instead of the acute-care facility being the center of the
infection control universe, the infection control department has become the
center of the diverse health-care delivery system. Infection control
departments will need to expand their surveillance of infections and
adverse events and their prevention efforts to all settings in which health
care is delivered.
Infection control issues have been a reoccurring theme throughout the ages.
Hospital-acquired infections are a leading cause of injury and unnecessary
death. Such infections have been linked to unsanitary conditions in the
environment and poor practices that can lead to cross-contamination between
patients, visitors, and caregivers (e.g., hand-washing technique, sterile
gowning procedures, improper disposal of contaminated clothing, failure to
follow recognized protocol for sterilizing hospital instruments, and equipment).
The CDC has estimated that infections that are acquired by patients during
their hospital stay, known as “nosocomial bloodstream infections” are a
leading cause of death in the United States. If we assume a nosocomial
infection rate of 5%, of which 10% are bloodstream infections, and an
attributable mortality rate of 15%, bloodstream infections would represent the
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21
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23
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eighth leading cause of death in the United States.” It has been estimated
that the total number of infections have resulted in as many as 100,000 deaths
and added billions of dollars in additional healthcare costs. These numbers do
not reflect infections that have occurred in physicians’ offices, nor do they
account for the pain and disabilities suffered by patients who have been the
recipient of a hospital-acquired infection.
DEATHS BY MEDICAL MISTAKES HIT RECORDS
It’s a chilling reality—one often overlooked in annual mortality statistics:
Preventable medical errors persist as the No. 3 killer in the U.S.—third only
to heart disease and cancer—claiming the lives of some 400,000 each year.
At a Senate hearing Thursday, patient safety officials put their best ideas
forward on how to solve the crisis, with IT often at the center of discussions.
—McCann, Erin, Healthcare IT News, July 18, 2014
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19
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▸ HISTORY CHALLENGES US TO DO BETTER
The maintenance of hospitals today is a result of the human emotions
of fear, pity, and sympathy, together with civic consciousness and
religious zeal. If society has changed, human nature has remained much the
same, for it was with these fundamental emotions which led ancient peoples to
build hospitals for their sick and injured.
—Malcolm T. MacEachern, MD, CM, DSc, LLD
The pinnacle of the evolution of the hospital has not been reached, nor has the
final page of its colorful history been written. As long as there remains a
humanitarian impulse and as long as a society feels compassion, love, and
sympathy for its neighbors, there will be hospitals. In the past, hospitals
changed as conditions changed. In the future, they will continue to change to
meet the needs of their communities. Healthcare leaders of the 21st century
must understand their roots. They must understand the historical value of
knowing the past and possess the vision to preserve the good, the courage to
expunge the bad, and the passion to create an even better healthcare system,
one that provides quality care for all. With each new discovery comes a new
challenge.
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▸ CHAPTER REVIEW
1. The evolution of the hospital traveled a long, tortuous road, struggling
along a hazardous path from India and Egypt to Greece and Rome, to
the Islamic countries, to England, France, Germany, Spain, Italy, and
on to America.
The existence of hospitals is evidence of a high degree of
civilization, in which people are interested not only in the well-
being of themselves and their families, but that of the greater
community.
2. Religion played an important role in the development of hospitals.
Faith healing was practiced in India and Egypt thousands of
years ago. Aesculapia (hospital temples) were numerous in
ancient Greece and Rome and were dedicated to the god of
medicine.
Hospitals in the early Christian era and in the Middle Ages were
an integral part of the church.
Not until abuses crept into their administration under
ecclesiastical authority in the 15th and 16th centuries were
some of religious hospitals taken over and managed by civil
bodies.
3. The development of the hospital has not been a smooth and easy
advance.
Centuries of experiments, scientific discoveries, and public
enlightenment were necessary to break down the barriers of
ignorance and prejudice.
The evolution was accomplished in cycles, with alternating dark
and golden ages.
Never has the hospital possessed the quality and quantity of
scientific care for the sick that it has today, never before has its
influence been so extensive and so widespread, and never
before has it played such an important role in the life of the
community.
During all of this growth and development, hospitals benefited
by technical and scientific developments.
4. The primary function of the hospital is to care for the sick and injured.
The scope of services offered by hospitals continues to
expand.
a. Treating the sick and injured
b. Preventing illness
c. Prolonging purposeful life
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5. National health insurance helps ensure more Americans will receive
healthcare benefits, although the costs associated with it will require
more collaboration among politicians, caregivers, and receivers of care
well into the future.
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▸ REVIEW QUESTIONS
1. Describe various historical events that have led to the growth of
hospitals and at times impeded their progress over the centuries.
2. Describe advances in medicine that have contributed to improving the
quality of patient care.
3. Who is often recognized as being the first hospital administrator and
what major contributions did she make to nursing in the improvement
of patient care?
4. What data did Semmelweis collect, and what was the significance of
those data as related to performance improvement in the present-day
hospital?
5. Describe how social media can have a negative or positive impact on
caregivers and healthcare facilities.
6. Discuss the advancements in medicine and the challenges facing
hospitals today.
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▸ NOTES
1. Wisdom Quotes, “Gerda Lerner Quote,”
http://www.wisdomquotes.com/002320.html
2. “How to Stop Hospitals From Killing Us,” The Wall Street Journal, September
21, 2012.
3. Malcolm T. MacEachern, Hospital Organization and Management (Berwyn, IL:
Physician’s Record Company, 1957), 10.
4. Mass Moments, “Massachusetts General Hospital Admits First Patient,
September 3, 1821,” http://www.massmoments.org/moment.cfm?mid=256
5. Mary Ann Byrnes, “Non-Nursing Functions: The Nurses State Their Case,”
American Journal of Nursing 82 (1982): 1089.
6. Carrie Howse, “Registration—A Minor Victory,” Nursing Times 85 (1989): 32.
7. BioPortfolio, “Florence Nightingale in Absentia: Nursing and the 1893
Columbian Exposition,”
http://www.bioportfolio.com/resources/pmarticle/72474/Florence-
Nightingale-In-Absentia-Nursing-And-The-1893-Columbian-
Exposition.html
8. MedicineNet, “Medical Definition of Fever, puerperal,”
http://www.medicinenet.com/script/main/art.asp?articlekey=7921
9. The Joint Commission, 2017 Hospital Accreditation Standards,
NPSG.07.01.01-07.06,01.
10. Centers for Disease Control and Prevention, “Historical Perspectives
Centennial: Koch’s Discovery of the Tubercle Bacillus,” Morbidity and Mortality
Weekly Report 31, no. 10 (1982): 121–123.
http://www.cdc.gov/mmwr/preview/mmwrhtml/00000222.htm
11. U.S. National Library of Medicine, “Profiles in Science: The Francis Crick
Papers,”
https://profiles.nlm.nih.gov/SC/Views/Exhibit/narrative/doublehelix.html
12. “Grading Hospital Safety,” AARP Bulletin, November 2012.
13. Cheryl W. Thompson, “Howard: A Hospital in Turmoil,” The Washington Post,
March 26, 2017, at A1.
14. Sy Mukherjee, “STUDY: An Increasing Number of Patients at Isolated Rural
Hospitals Are Dying, ThinkProgress, April 3, 2013.
https://thinkprogress.org/study-an-increasing-number-of-patients-at-
isolated-rural-hospitals-are-dying-175393ac39c5
15. Encyclopedia Britannica, “Translational Medicine: Year In Review 2012,”
https://www.britannica.com/topic/Translational-Medicine-1891925
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http://www.wisdomquotes.com/002320.html

http://www.massmoments.org/moment.cfm?mid=256

http://www.bioportfolio.com/resources/pmarticle/72474/Florence-Nightingale-In-Absentia-Nursing-And-The-1893-Columbian-Exposition.html

http://www.medicinenet.com/script/main/art.asp?articlekey=7921

http://www.cdc.gov/mmwr/preview/mmwrhtml/00000222.htm

https://profiles.nlm.nih.gov/SC/Views/Exhibit/narrative/doublehelix.html

https://thinkprogress.org/study-an-increasing-number-of-patients-at-isolated-rural-hospitals-are-dying-175393ac39c5

https://www.britannica.com/topic/Translational-Medicine-1891925

16. da Vinci® Surgery, “Minimally Invasive Surgery,”
http://www.davincisurgery.com
17. Rifat Latifi. “Surgical Decision-making Process: More Questions Than
Answers,” http://sjs.sagepub.com/content/102/3/139.full
18. Insurers Exit ObamaCare, National Health Insurance, AARP Bulletin, October
2016.
19. Erin McCann, Deaths by Medical Mistakes Hit Records,” Healthcare IT News,
July 18, 2104. http://www.healthcareitnews.com/news/deaths-by-medical-
mistakes-hit-records
20. Centers for Disease Control and Prevention, “Healthcare-Associated Infections:
HAI Data and Statistics,” https://www.cdc.gov/hai/surveillance/
21. William R. Jarvis, “Infection Control and Changing Health-Care Delivery
Systems,” Emerging Infectious Diseases, Centers for Disease Control and
Prevention, http://www.cdc.gov/ncidod/eid/vol7no2/jarvis.htm
22. Centers for Disease Control and Prevention, “You’re your Hands,” CDC
Features, Centers for Disease Control and Prevention,
http://www.cdc.gov/Features/HandWashing/
23. Richard P. Wenzel and Michael B. Edmond, “The Impact of Hospital-Acquired
Bloodstream Infections,”
http://www.cdc.gov/ncidod/eid/vol7no2/wenzel.htm
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http://www.davincisurgery.com

http://sjs.sagepub.com/content/102/3/139.full

http://www.healthcareitnews.com/news/deaths-by-medical-mistakes-hit-records

https://www.cdc.gov/hai/surveillance/

http://www.cdc.gov/ncidod/eid/vol7no2/jarvis.htm

http://www.cdc.gov/Features/HandWashing/

http://www.cdc.gov/ncidod/eid/vol7no2/wenzel.htm

© James Steidl/ShutterStock, Inc.
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CHAPTER 2
Government, Law, and Ethics
As the patriots of seventy-six did to the support of the Declaration of
Independence, so to the support of the Constitution and Laws, let
every American pledge his life, his property, and his sacred honor—let every
man remember that to violate the law, is to trample on the blood of his father,
and to tear the character of his own, and his children’s liberty. Let reverence
for the laws, be breathed by every American mother, to the lisping babe, that
prattles on her lap—let it be taught in schools, in seminaries, and in colleges;
let it be written in Primers, spelling books, and in Almanacs—let it be preached
from the pulpit, proclaimed in legislative halls, and enforced in courts of justice.
And, in short, let it become the political religion of the nation; and let the old
and the young, the rich and the poor, the grave and the gay, of all sexes and
tongues, and colors and conditions, sacrifice unceasingly upon its altars.
—Abraham Lincoln
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▸ LEARNING OBJECTIVES
The reader, upon completion of this chapter, will be able to:
Explain the development and sources of law.
Discuss how case law differs from statutory and administrative law.
Describe what is meant by conflict of laws.
Describe the three branches of government.
Describe what is meant by separation of powers.
Describe the organizational structure of the Department of Health and
Human Services.
Describe the functions of various government ethics committees.
Explain the term political malpractice.
Laws are the very bulwarks of liberty; they define every man’s rights,
and defend the individual liberties of all men.
—J. G. Holland
This chapter introduces the reader to the development of law in the United
States, the functioning of the legal system, and the roles of the three branches
of government in creating, administering, and enforcing the law. It lays a
foundation for the understanding of the legal system that is needed before one
can appreciate or comprehend the specific laws and principles relating to
health care. The reader is also introduced to the term political malpractice, as
well as a variety of government ethics committees that address ethical conduct
within the various branches of government.
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▸ DEVELOPMENT OF LAW
Scholars often define the law as a system of principles and processes by
which people in a society deal with disputes and problems, seeking to solve or
settle them without resorting to force. Simply stated, laws are rules of conduct
enforced by government, which imposes penalties when prescribed laws are
violated.
U.S. Supreme Court Justice Oliver Wendell Holmes said that the law “is a
magic mirror, wherein we see reflected not only our own lives but also the lives
of those who went before us.” Chief Justice John Marshall, in delivering his
opinion to the court in Marbury v. Madison, said,
The very essence of civil liberty certainly consists in the right of every
individual to claim the protection of the laws, whenever he receives an
injury. One of the first duties of government is to afford that protection.
[The] government of the United States has been emphatically termed a
government of laws, and not of men. It will certainly cease to deserve this
high appellation, if the laws furnish no remedy for the violation of a vested
right.
Laws govern the relationships between private individuals and organizations
and between both of these parties and government. Public law is the term
used to describe “The laws that cover administration, constitution, and criminal
acts. It controls the actions between the citizens of the state and the state
itself. It deals with the government’s operation and structure.” The purpose of
public law is to attain what society deems to be valid public goals. One
important segment of public law, for example, is criminal law, which prohibits
conduct deemed injurious to public order and provides for punishment of those
proven to have engaged in such conduct.
In contrast, private law is concerned with the recognition and enforcement of
the rights and duties of private individuals. Tort and contract actions are two
basic types of private law. In a tort action, one party asserts that the wrongful
conduct of another has caused harm, and the injured party seeks
compensation for the harm suffered. A contract action involves a claim by one
party that another party has breached an agreement by failing to fulfill an
obligation. Either remuneration or specific performance of the obligation may
be sought as a remedy. Without an organized, clear system of laws that
regulate society, anarchy would clearly arise.
Public Policy as a Principle of Law
Public policy is the principle of law that holds that no one can lawfully do that
which tends to be injurious to the public or against the public good. The
sources of public policy “include legislation; administrative rules, regulations,
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or decisions; and judicial decisions. In certain instances, a professional code
of ethics may contain an expression of public policy.”4
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▸ SOURCES OF LAW
The basic sources of law are common law, which is derived from judicial
decisions; statutory law, which emanates from the federal and state
legislatures; and administrative law, prescribed by administrative agencies. In
those instances in which written laws are either silent, vague, or contradictory
to other laws, the judicial system often is called on to resolve those disputes
until such time as appropriate legislative action can be taken to clear up a
particular legal issue. In the following sections, the sources of law that formed
the foundation of our legal system are discussed.
Common Law
Common law refers to the body of principles that evolve from and expand
upon judicial decisions that arise during the trial of court cases. Many of the
legal principles and rules applied today by courts in the United States have
their origins in English common law.
Because a law could never cover every potential human event that might
occur in society, the judicial system is doubly necessary. It not only serves as
a mechanism for reviewing legal disputes that arise in the written law, but it is
also an effective review mechanism for those issues in which the written law is
silent or in instances of a mixture of issues involving both written law and
common law decisions. For example, in the Cruzan v. Director, Missouri
Department of Health case, the U.S. Supreme Court based its decision on the
consideration of existing statutory law and prior judicial decisions.
Common Law in England
Law reflects to a large degree the civilization of those that live under it. Its
progress and development are mirrors not merely of material prosperity but
of the method of thought and of the outlook of the age.
The common law of England is much like its language: as varied as the
nations that peopled its land in different locations and different periods. Parts
of the common law are derived from the Britons, Romans, Saxons, Danes,
and Normans.
To recount what innovations were made by the succession of these
different nations, or estimate what proportion of the customs of each go to
the composing of our body of common law, would be impossible at this
distance of time. As to a great part of this period, we have no monuments
of antiquity to guide us in our inquiry; and the lights which gleam upon the
other part afford but dim prospect. Our conjectures can only be assisted by
the history of the revolutions effected by these several nations.
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The Romans governed the island as a province from the time of Claudius (AD
43) until AD 448. It was a time of peace and cultivation of the arts. Roman
laws were administered as laws of the country. When the Romans left Britain
to attend to their own domestic safety, the Picts and the Scots clashed with
inhabitants of southern England. Unable to oppose the attack, these southern
inhabitants appealed to the Saxons for assistance. The Saxons, who came
from German lands, drove the northern invaders back inside their own
borders. The Saxons also had to contend with Danish raiders from the 8th to
the 11th centuries.
The law in England before the Norman Conquest in 1066 was dispensed
primarily by tradition and local custom and mostly dealt with violent crimes.
The kings during this period were concerned more with enforcing customary
law than with amending it. The courts mainly consisted of open-air meetings
where no records were maintained. “For the Anglo-Saxons justice was a local
matter, administered chiefly in the shire courts, and was largely dependent
upon local customs, preserved in the memory of those persons who declared
the law in the court.” The Saxons operated with the goal of exterminating the
Britons and destroying all their monuments and establishments. Subsequently,
the native Briton customs and laws fell out of favor. The Britons were forced
into the mountains of Wales, dividing the remainder of the dominion into seven
independent kingdoms.
These kingdoms were, for a time, independent of one another. A variety of
laws grew among the Saxons themselves, as well as among the Danes, who,
following a treaty in Northumberland, were considered in some measure to be
part of the nation. Toward the later part of Saxon times, the kingdom was
governed by a variety of laws (Mercian Law, West-Saxon Law, and Danish
Law) and local customs. All British and Roman customs that survived the
times were buried within one of the three laws, which governed all of
England.
Following their conquest in 1066, the Normans had little regard for Anglo-
Saxon laws. They considered themselves apart from such laws.
It is obviously impossible to attempt an adequate picture of Anglo-Saxon
life. It was a wild time. Men lived in terror of the vast forests, where it was
easy to be lost and succumb to starvation, of their fellow man who would
plunder and slay, and above all of the Unknown, whose inscrutable ways
seemed constantly to be bringing famine and disaster. The uncertainties of
modern life pale into insignificance when regarded from the standpoint of
these men. It is natural, therefore, that their law should reflect their reaction
against the environment. It was conservative and harsh. Violence, robbery
and death formed its background.
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The principal change introduced by the Norman Conquest was that the king’s
court opened for disputes about land tenure. Land disputes involved the
Saxons who held the land before the conquest and the Normans who
dispossessed them. Evidence in such disputes was often the result of oral
testimony from neighboring landowners. Although no professional judiciary yet
existed, the king’s representatives held trials before the county courts, and a
cleric often presided.
Soon, a system of national law began to develop based on custom, foreign
literature, and the rule of strong kings. The first royal court was established in
1178. This court, enlisting the aid of a jury, heard the complaints of the
kingdom’s subjects. Because there were few written laws, a body of principles
evolved from these court decisions, which became known as common law.
Judges used these court decisions to decide subsequent cases. As
Parliament’s power to legislate grew, the initiative for developing new laws
passed from the king to Parliament.
Common Law in the United States
During the colonial period, English common law began to be applied in the
colonies. In the vast new country with its abundance of natural resources,
English common law could not be adopted exactly; the law was thus adapted
to meet the needs of the new land. Compared to England, the New World
glistened with land, timber, and minerals, so the law would have to aid the new
society in mastering the land.
In an 1829 U.S. Supreme Court decision, Joseph Story wrote, “The common
law of England is not to be taken in all respects to be that of America. Our
ancestors brought with them its general principles, and claimed it as their
birthright but they brought with them and adopted only that portion which was
applicable to their situation.”
After the American Revolution, each state, with the exception of Louisiana,
adopted all or part of the existing English common law and added to it as
needed. Louisiana civil law, by contrast, is based to a great extent on French
and Spanish laws and, especially, on the Code of Napoleon. As a result, there
is no national system of common law in the United States, and common law
on specific subjects may differ from state to state.
Case law, derived from judicial decisions, did not easily pass from colony to
colony. There were no printed reports to make transfer easy, although in the
18th century, some manuscript materials did circulate among lawyers. These
could hardly have been very influential. No doubt custom and case law slowly
seeped from colony to colony. Travelers and word of mouth spread the
knowledge of living law. It is hard to say how much this occurred, and thus, it
is hard to tell to what degree there was a common legal structure.
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Judicial review became part of the law in the decade before the federal
Constitution was adopted. Courts began to assert their power to rule on the
constitutionality of legislative acts and to void unconstitutional statutes.
Today, cases are tried applying common law principles unless a statute
governs. Although statutory law has affirmed many of the legal rules and
principles initially established by the courts, new issues continue to arise,
especially in private law disputes, which require decision making according to
common law principles. Common law actions are initiated mainly to recover
monetary damages or possession of real or personal property.
State Decisions Not Binding on Other States
When a higher state court has enunciated a common law principle, the lower
courts within the state where the decision was rendered must follow that
principle. A decision in a case that sets forth a new legal principle establishes
a precedent. Trial courts or those on equal footing are not bound by the
decisions of other trial courts. Also, a principle established in one state does
not set precedent for another state. Rather, the rulings in one jurisdiction may
be used by the courts of other jurisdictions as guides to the legal analysis of a
particular legal problem. Decisions found to be reasonable are followed, and
decisions found to be unreasonable are not followed.
For example, in Lebron v. Gottlieb Memorial Hospital, the plaintiffs
challenged the caps on noneconomic damages contained in an Illinois act. In
this case, the Supreme Court of Illinois agreed with the plaintiffs that a
$500,000 limit on noneconomic damages was arbitrary and violated the state’s
constitution.
The defendants referred the court’s attention to statutes limiting noneconomic
damages in medical malpractice cases that have been adopted in other states.
The defendants contended that the limits on damages contained in the act are
well within the range of reasonable limits adopted by these states. The court
reviewed the statutes cited by the defendants and observed that the limitations
on noneconomic damages adopted in other states vary widely.
For example, the California statute provides simply: “In no [medical
malpractice] action shall the amount of damages for noneconomic losses
exceed two hundred fifty thousand dollars ($250,000).” In contrast, the
Florida statute sets up a more complex scheme, in which the damages cap
may be as low as $150,000 and as high as $1.5 million, depending on whether
the medical negligence is attributable to a practitioner or nonpractitioner, the
negligence results in a permanent vegetative state or death, the negligence
caused a catastrophic injury to the patient, or the negligence occurred during
the provision of emergency care.
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On what basis defendants have determined that such disparate provisions are
all reasonable is not known, and it is not for the Supreme Court of Illinois to
judge the reasonableness of other states’ legislation. The “everybody is doing
it” mentality is hardly a valid test for the constitutionality of the statute.
Although decisions from other jurisdictions can provide guidance, “This court’s
jurisprudence of state constitutional law cannot be predicated on the actions of
our sister states.”
The position of a court or agency, relative to other courts and agencies,
determines the place assigned to its decision in the hierarchy of decisional
law. The decisions of the U.S. Supreme Court are highest in the hierarchy of
decisional law with respect to federal legal questions. Because of the parties
or the legal question(s) involved, most legal controversies do not fall within the
scope of the Supreme Court’s decision-making responsibilities. On questions
of purely state concern—such as the interpretation of a state statute that
raises no issues under the U.S. Constitution or federal law—the highest court
in the state has the final word on interpretation of the law.
Common Law Principles
The following are explanations of some of the more important common law
principles:
Precedent. A precedent is a judicial decision that may be used as a
standard in subsequent similar cases. A precedent is set when a court
decision is rendered that serves as a rule for future guidance when
deciding similar cases.
Res judicata. In common law, the term res judicata—which means “the
thing is decided”—refers to that which has been previously acted on or
decided by the courts. According to Black’s Law Dictionary, it is a rule
where “a final judgment rendered by a court of competent jurisdiction
on the merits is conclusive as to the rights of the parties and their
privies, and, as to them, constitutes an absolute bar to subsequent
action involving the same claim, demand, or cause of action.”
Stare decisis. The common law principle stare decisis (“let the decision
stand”) provides that when a decision is rendered in a lawsuit involving
a particular set of facts, another lawsuit involving an identical or
substantially similar situation is to be resolved in the same manner as
the first lawsuit. A lawsuit is decided by applying the rules and
principles of prior cases. In this manner, courts arrive at comparable
rulings. Sometimes, slight factual differences may provide a basis for
recognizing distinctions between the precedent and the current case.
In some cases, even when such differences are absent, a court may
conclude that a particular common law rule is no longer in accord with
the needs of society and may depart from precedent. Principles of law
are subject to change, whether they originate in statutory or in common
law. Common law principles may be modified, overturned, abrogated,
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or created by new court decisions in a continuing process of growth
and development to reflect changes in social attitudes, public needs,
judicial prejudices, or contemporary political thinking.
First Medical Malpractice Common Law Case
The first common law case in the United States in which a physician was held
legally responsible for negligence occurred as early as 1794. In Cross v.
Guthery, the court heard that when Mrs. Cross complained that there was
something wrong with her breast, her husband sent for Dr. Guthery. The
doctor examined Mrs. Cross, diagnosed her ailment, and removed her breast.
Shortly after the surgery, she bled to death. Guthery expressed his regrets to
her husband and then sent him a bill for 15 pounds. Mr. Cross hired a lawyer,
who persuaded a jury to dismiss Guthery’s bill and award Mr. Cross 40
pounds as compensation for the loss of his wife’s companionship. Since that
time, physicians have experienced recurring periods of substantial increases
in the number of malpractice cases. The first such increase occurred in the 15
years prior to the Civil War. Another rise in the number of malpractice cases
and ever-increasing concern about them occurred at the beginning of the 20th
century. By 1941, The Journal of the American Medical Association published
studies showing that 1,296 malpractices had occurred between 1900 and
1940, with more than 500 between 1930 and 1940. The increase in
malpractice cases was attributed to substantial malpractice awards, high
patient expectations, new diagnostic procedures, and erosion of the
physician–patient relationship.
The Harvard Medical Malpractice Study, commissioned by the state of New
York to determine the rate of medical injury in New York hospitals, revealed
that 3.7% of patients entering New York hospitals in 1984 were injured by the
care provided. One tenth of those who were treated negligently filed
malpractice suits. The research group conducting the study suggested that
“only one claim makes its way into the tort system for every eight cases of
injury caused by medical negligence.” The study, which cost $3.1 million and
ran 1,200 pages, was funded by the state and a grant from the Robert Wood
Johnson Foundation. It involved 4 years of research and included the review
of more than 30,000 medical records.
The number of malpractice suits is staggering. Critics say that the system fails
by making too little information known. A report by the Physician Insurers
Association of America, which represents 50 malpractice insurance companies
covering 50% of private physicians in the United States, claims that breast
cancer accounts for more medical malpractice claims than any other medical
condition. Delayed diagnosis is common among both younger and older
women. The report focuses on 487 lawsuits in which damages were awarded
for delayed diagnosis. The most common reasons for delay were
misdiagnosis, failure to follow up, and false-negative mammograms. The next
most common medical diagnoses involving malpractice suits were infant brain
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25
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damage, pregnancy, and heart attacks. Not much has changed since this
study was conducted. Misdiagnosis and failure to follow up remain high on the
list of common malpractice claims. The long list of news articles on
misdiagnoses continues to flow as physicians often rely on technology to
make their diagnoses, as Ms. Sandra B. Goodman well describes in the news
feature below.
AS HANDS-ON DOCTORING FADES AWAY, PATIENTS
LOSE
Doctors at a Northern California hospital, concerned that a 40-year-old
woman with sky-high blood pressure and confusion might have a blood clot,
ordered a CT scan of her lungs. To their surprise, the scan reveals not a clot
but large cancers in both breasts that have spread throughout her body. Had
they done a simple physical exam of the woman’s chest, they would have
been able to feel the tumors. So would the doctors who saw her during
several hospitalizations over the previous two years, when the cancer might
have been more easily treated.
Failure to diagnose a patient’s disease is sometimes due to the difficulty
associated with evaluating vague symptoms that can often mimic more
common and treatable ailments. The complexity associated with diagnosing
rare autoimmune diseases, such as scleroderma and lupus, often results in a
delayed diagnosis. In 2012, misdiagnosis accounted for 34% of malpractice
claims. Surgery accounted for 24%, treatment 18%, obstetrics 11%, and
medication related 4%, monitoring 3%, anesthesia 3%, and other 4% of claims
made. Actual numbers are increasingly difficult to determine due to
unpublished out-of-court settlements.
Statutory Law
Statutory law is written law emanating from a legislative body. Although a
statute can abolish any rule of common law, it can do so only by express
words. The principles and rules of statutory law are set in hierarchical order.
The Constitution of the United States adopted at the Constitutional Convention
in Philadelphia in 1787 is first in the hierarchy of enacted law. Article VI of the
Constitution declares:
This Constitution, and the Laws of the United States which shall be made
in Pursuance thereof; and all Treaties made, or which shall be made, under
the Authority of the United States, shall be the supreme Law of the Land;
and the Judges in every State shall be bound thereby, any Thing in the
Constitution or Laws of any State to the Contrary notwithstanding.
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The clear import of these words is that the U.S. Constitution, federal law, and
federal treaties take precedence over the constitutions and laws of the states
and local jurisdictions. Statutory law may be amended, repealed, or expanded
by action of the legislature, as was the case with the Bill of Rights, which
details the first 10 amendments to the U.S. Constitution, and other
amendments to the Constitution, such as the 14th Amendment, which
provides that a state cannot act to deny equal protection of the laws to any
person. If a state or a political subdivision of a state, whether through its
executive, judicial, or legislative branch, acts in such a way as to deny unfairly
to any person the rights accorded to another, the amendment has been
violated.
Fourteenth Amendment to the U.S. Constitution
Section 1. All persons born or naturalized in the United States, and subject
to the jurisdiction thereof, are citizens of the United States and of the state
wherein they reside. No state shall make or enforce any law, which shall
abridge the privileges or immunities of citizens of the United States; nor
shall any state deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction the equal
protection of the laws.
Section 5. The Congress shall have power to enforce, by appropriate
legislation, the provisions of this article.
States and local jurisdictions can only enact and enforce laws that do not
conflict with federal law. Statutory laws may be declared void by a court; for
example, a statute may be found unconstitutional because it does not comply
with a state or federal constitution, because it is vague or ambiguous, or, in the
case of a state law, because it is in conflict with a federal law.
In many cases involving statutory law, the court is called on to interpret how a
statute applies to a given set of facts. For example, a statute may state merely
that no person may discriminate against another person because of race,
creed, color, or sex. A court may then be called on to decide whether certain
actions by a person are discriminatory and therefore violate the law.
Administrative Law
Administrative law is the extensive body of public law issued by either state or
federal agencies to direct the enacted laws of the federal and state
governments. It is the branch of law that controls the administrative operations
of government. Congress and state legislative bodies realistically cannot
oversee their many laws; therefore, they delegate implementation and
administration of the law to an appropriate administrative agency. Healthcare
organizations, in particular, are inundated with a proliferation of administrative
rules and regulations affecting every aspect of their operations.
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The Administrative Procedures Act describes the different procedures under
which federal administrative agencies must operate. The act prescribes the
procedural responsibilities and authority of administrative agencies and
provides for legal remedies for those wronged by agency actions. The
regulatory power exercised by administrative agencies includes power to
license, power of rate setting (e.g., Centers for Medicare and Medicaid
Services [CMS]), and power over business practices (e.g., National Labor
Relations Board [NLRB]).
Rules and Regulations
Administrative agencies have legislative, judicial, and executive functions.
They have the authority to formulate rules and regulations considered
necessary to carry out the intent of legislative enactments. Regulatory
agencies have the ability to legislate, adjudicate, and enforce their own
regulations in many cases.
Rules and regulations established by an administrative agency must be
administered within the scope of authority delegated to it by Congress.
Although an agency must comply with its own regulations, agency regulations
must be consistent with the statute under which they are promulgated. An
agency’s interpretation of a statute cannot supersede the language chosen by
Congress. An executive regulation that defines some general statutory term in
a too restrictive or unrealistic manner is invalid. Agency regulations and
administrative decisions are subject to judicial review when questions arise as
to whether an agency has overstepped its bounds in its interpretation of the
law.
§702: Right to Review
A person suffering legal wrong because of agency action, or adversely
affected or aggrieved by agency action within the meaning of a relevant
statute, is entitled to judicial review thereof. . . .
§706: Scope of Review
To the extent necessary . . . the reviewing court shall decide all relevant
questions of law, interpret constitutional and statutory provisions, and
determine the meaning or applicability of the terms of an agency action.
The reviewing court shall
(1) compel agency action unlawfully withheld or unreasonably delayed; and
(2) hold unlawful and set aside agency action, findings, and conclusions
found to be
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law;
(B) contrary to constitutional right, power, privilege, or immunity;
(C) in excess of statutory jurisdiction, authority, or limitations, or short of
statutory right;
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(D) without observance of procedure required by law;
(E) unsupported by substantial evidence in a case subject to sections
556 and 557 of this title or otherwise reviewed on the record of an
agency hearing provided by statute; or
(F) unwarranted by the facts to the extent that the facts are subject to
trial de novo by the reviewing court.
In making the foregoing determinations, the court shall review the whole
record or those parts of it cited by a party, and due account shall be taken of
the rule of prejudicial error.
Recourse to an administrative agency for resolution of a dispute is generally
required prior to seeking judicial review. The Pennsylvania Commonwealth
Court held in Fair Rest Home v. Commonwealth, Department of Health that
the Department of Health was required to hold a hearing before it ordered
revocation of a nursing home’s operating license. The Department of Health
failed in its responsibility when “in a revocation proceeding it [did] not give
careful consideration to its statutorily mandated responsibility to hear
testimony.”
Regulations and decisions of administrative agencies reviewed by the courts
may be upheld, modified, overturned, or reversed and remanded for further
proceedings. For example, the owner and operator of a licensed residential
care facility brought an action challenging regulations, promulgated by the
Arkansas Department of Human Services (DHS) through its Office of Long
Term Care (OLTC), governing administration of medicines in residential care
facilities.
The owner challenged two OLTC regulations that required the following:
1. Under no circumstances shall an operator or employee or anyone
solicited by an operator or employee be permitted to administer any
oral medications, injectable medications, eye drops, eardrops, or
topical ointments (both prescription and nonprescription drugs).
2. In addition, any owner and/or operator of a Residential Care Facility
who is a licensed nurse who administers any medication to a resident
will be in violation of operating an unlicensed nursing home.
The circuit court in this case held that the regulations were invalid, and the
DHS appealed. The Supreme Court reversed the circuit court’s decision by
holding the regulations reasonable in light of the distinctions between
residential care facilities and nursing homes.
Conflict of Laws
When state and federal laws conflict, resolution can be sought in the
appropriate federal court. The following case illustrates how federal and state
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laws may be in conflict. The plaintiff in Dorsten v. Lapeer County General
Hospital brought an action against a hospital and certain physicians on the
medical board, alleging wrongful denial of her application for medical staff
privileges. The plaintiff asserted claims under the U.S. Code for sex
discrimination, violations of the Sherman Antitrust Act, and the like. The
plaintiff filed a motion to compel discovery of peer review reports to support
her case. The U.S. District Court held that the plaintiff was entitled to discovery
of peer review reports despite a Michigan state law purporting to establish an
absolute privilege for peer review reports conducted by hospital review boards.
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▸ GOVERNMENT ORGANIZATION
The three branches of the federal government, as illustrated in FIGURE 2-1,
are the legislative, executive, and judicial branches. A typical example of a
state government organization is illustrated in FIGURE 2-2. A vital concept in
the constitutional framework of government on both federal and state levels is
the separation of powers. Essentially, this principle provides that no one
branch of government is clearly dominant over the other two; however, in the
exercise of its functions, each may affect and limit the activities, functions, and
powers of the others.
FIGURE 2-1 Government of the United States.
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FIGURE 2-2 Example of a state government organization.
Legislative Branch
On the federal level, legislative powers are vested in the Congress of the
United States, which consists of the Senate and the House of
Representatives. The function of the legislative branch is to enact laws, as well
as amend or repeal existing legislation and to create new legislation. The
legislature determines the nature and extent of the need for new laws and for
changes in existing laws. Committees of both houses of Congress are
responsible for preparing federal legislation. There are 16 standing
committees in the Senate and 19 in the House of Representatives, all of
whose membership are appointed by a vote of the entire body.
Legislative proposals are assigned or referred to an appropriate committee for
study. The committees conduct investigations and hold hearings where
interested persons may present their views regarding proposed legislation.
These proceedings provide additional information to assist committee
members in their consideration of proposed bills. A bill may be reported out of
a committee in its original form, favorably or unfavorably; it may be reported
out with recommended amendments; or the bill might be allowed to lie in the
committee without action. Some bills eventually reach the full legislative body,
where, after consideration and debate, they may be approved or rejected.
The U.S. Congress and all state legislatures are bicameral (consisting of two
houses), except for the Nebraska legislature, which is unicameral. Both
houses in a bicameral legislature must pass identical versions of a legislative
proposal before the legislation can be brought to the chief executive (president
or governor).
Executive Branch
The primary function of the executive branch of government on the federal and
state level is to administer and enforce the law. The chief executive, either the
president of the United States or the governor of a state, also has a role in the
creation of law through the power to approve or veto legislative proposals.
The U.S. Constitution provides that the president of the United States holds
the executive power. The president serves as the administrative head of the
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executive branch of the federal government. The executive branch includes 15
executive departments (see Figure 2-1), as well as a variety of agencies, both
temporary and permanent.
The cabinet is composed of 15 executive department heads. Each
department is responsible for a different area of public affairs, and each
enforces the law within its area of responsibility. For example, the DHHS
administers much of the federal health law enacted by Congress. Most state
executive branches are also organized on a departmental basis. These
departments administer and enforce state law concerning public affairs.
On a state level, the governor serves as the chief executive officer. The
responsibilities of a state governor are provided for in the state’s constitution.
The Massachusetts State Constitution, for example, describes the
responsibilities of the governor as presenting an annual budget to the state
legislature, recommending new legislation, vetoing legislation, appointing and
removing department heads, appointing judicial officers, and acting as
Commander-in-Chief of the state’s military forces (the Massachusetts National
Guard).
Judicial Branch
As I have said in the past, when government bureaus and agencies go
awry, which are adjuncts of the legislative or executive branches, the
people flee to the third branch, their courts, for solace and justice.
—Justice J. Henderson, Supreme Court of South Dakota
The function of the judicial branch of government is adjudication—resolving
disputes in accordance with law. As a practical matter, most disputes or
controversies that are covered by legal principles or rules are resolved without
resort to the courts.
Alexis de Tocqueville (1805–1859), a foreign observer commenting on the
primordial place of the law and the legal profession, stated:
Scarcely any political question arises in the United States that is not
resolved, sooner or later, into a judicial question.
—Alexis de Tocqueville (1805–1859)
The decision regarding which court has jurisdiction—the legal right to hear and
rule on a particular case—is determined by such matters as the locality in
which each party to a lawsuit resides and the issues of a lawsuit. Each state in
the United States provides its own court system, which is created by the
state’s constitution and statutes. Most of the nation’s judicial business is
reviewed and acted on in state courts. Each state maintains a level of trial
courts that have original jurisdiction, meaning the authority of a court to first
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conduct a trial on a specific case, as distinguished from a court with appellate
jurisdiction, where appeals from trial judgments are held. This jurisdiction may
exclude cases involving claims with damages less than a specified minimum,
probate matters (i.e., wills and estates), and workers’ compensation. Different
states have designated different names for trial courts (e.g., superior, district,
circuit, or supreme courts). Also on the trial court level are minor courts, such
as city, small claims, and justice of the peace courts. States such as
Massachusetts have consolidated their minor courts into a statewide court
system.
Each state has at least one appellate court. Many states have an intermediate
appellate court between the trial courts and the court of last resort, which is
the state supreme court in most states. Where this intermediate court is
present, there is a provision for appeal to it, with further review in all but select
cases. A state’s highest appellate tribunal is seen as the final arbiter for a
state’s system of jurisprudence. FIGURE 2-3 depicts a typical state court
system.
FIGURE 2-3 Typical state court system.
The trial court of the federal system is the U.S. District Court. There are 94
district courts in the 50 states (the larger states having more than one district
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court) and one in the District of Columbia. The Commonwealth of Puerto Rico
also has a district court with jurisdiction corresponding to that of district courts
in the different states. Generally, only one judge is required to sit and decide a
case, although certain cases require up to three judges. The federal district
courts hear civil, criminal, admiralty, and bankruptcy cases.
The U.S. Circuit Court of Appeals is the appellate court. There are 12 regional
courts in various cities and the 13th judicial court is located in Washington,
DC. Their main purpose is to review cases tried in federal district courts within
their respective circuits, but they also possess jurisdiction to review orders of
designated administrative agencies and to issue original writs in appropriate
cases. These intermediate appellate courts were created to relieve the U.S.
Supreme Court of deciding all cases appealed from the federal trial courts.
The Supreme Court, the nation’s highest court, is the only federal court
created directly by the Constitution. Eight associate justices and one chief
justice sit on the Supreme Court.
The court has limited original jurisdiction over the lower federal courts and the
highest state courts. In a few situations, an appeal will go directly from a
federal or state court to the Supreme Court, but in most cases, review must be
sought through the discretionary writ of certiorari, an appeal petition. In
addition to the aforementioned courts, special federal courts have jurisdiction
over particular subject matters. The U.S. Court of Claims, for example, has
jurisdiction over certain claims against the government. The U.S. Court of
Appeals for the Federal Circuit has appellate jurisdiction over certain customs
and patent matters. The U.S. Customs Court reviews certain administrative
decisions by customs officials. Also, there is a U.S. Tax Court and a U.S.
Court of Military Appeals. The federal court system is illustrated in FIGURE 2-
4.
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FIGURE 2-4 U.S. federal court system.
Separation of Powers
The concept of separation of powers, a system of checks and balances, is
illustrated in the relationships among the three branches of government with
regard to legislation. On the federal level, when a bill creating a statute is
enacted by Congress and signed by the president, it becomes law. If the
president vetoes a bill, it takes a two-thirds vote of each house of Congress to
override the veto. The president also can prevent a bill from becoming law by
avoiding any action while Congress is in session. This procedure, known as a
pocket veto, can temporarily stop a bill from becoming law and may
permanently prevent it from becoming law if later sessions of Congress do not
act on it favorably.
The Supreme Court may declare a bill that has become law invalid if it violates
the Constitution. “It is not entirely unworthy of observation, that in declaring
what shall be the Supreme law of the land, the Constitution itself is first
mentioned; and not the laws of the United States generally, but those only
made in pursuance to the Constitution, have that rank.”
Even though a Supreme Court decision is final regarding a specific
controversy, Congress and the president may generate new, constitutionally
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sound legislation to replace a law that has been declared unconstitutional. The
procedures for amending the Constitution are complex and often time
consuming, but they can serve as a way to offset or override a Supreme Court
decision.
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▸ DEPARTMENT OF HEALTH AND HUMAN SERVICES
The Department of Health and Human Services (DHHS) is a cabinet-level
department within the executive branch of the federal government (FIGURE 2-
5). The DHHS has been charged with the responsibility for developing and
implementing appropriate administrative regulations for carrying out national
health and human services policy objectives. The Department of Health and
Human Services was created on April 11, 1953 to strengthen “the public
health and welfare of the American people by making affordable and quality
health care and childcare accessible, ensuring the safety of food products,
preparing for public health emergencies, and advancing the diagnosis,
treatment, and curing of life threatening illnesses.” It is also the main source
of regulations governing the healthcare industry. The secretary of the DHHS,
serving as the department’s administrative head, advises the president with
regard to health, welfare, and income security plans, policies, and programs.
The DHHS is also responsible for many of the programs designed to meet the
needs of senior citizens, including Social Security benefits (e.g., retirement,
survivors, disability), Supplemental Security Income (which ensures a
minimum monthly income to needy persons and is administered by local
Social Security offices), Medicare, Medicaid, and programs under the Older
Americans Act (e.g., in-home services, such as home health and home-
delivered meals, and community services such as adult day care,
transportation, and ombudsman services in long-term care facilities).
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FIGURE 2-5 Organization of the Department of Health and Human Services.
Administration on Aging
The Administration on Aging (AOA) is the principal agency designated to carry
out the provisions of the Older Americans Act of 1965, which, as amended,
focuses on improving the lives of senior citizens in areas of income, housing,
health, employment, retirement, and community services. The AOA develops
policies, plans, and programs designed to promote the welfare of the aging
population. It promotes their needs by planning programs and developing
policy, procedural direction, and technical assistance to states and Native
American tribal governments.
Centers for Medicare and Medicaid Services
The Centers for Medicare and Medicaid Services (CMS), formerly the Health
Care Financing Administration, was created to combine under one
administration the oversight of the Medicare program, the federal portion of the
Medicaid program, the State Children’s Health Insurance Program, and related
quality assurance activities.
Medicare is a federally sponsored health insurance program for persons 65
years of age, as well as certain diseases and disabilities of all disabled
persons. It has four complementary parts A, B, C, and D:
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Medicare Part A
Medicare Part A helps pay for the costs associated with hospital care. Part
A can also help cover the cost of hospice, home health care and skilled
nursing facilities. Part A pays about 80 percent of Medicare-approved,
inpatient costs for the first 60 days of hospitalization. Patients who have
longer hospital stays are required to pay a larger share of the costs, thus
emphasizing the importance of having supplemental insurance.
Medicare Part B
Medicare Part B helps pay for medical costs associated with physician
visits, some home health care, medical equipment, outpatient procedures,
rehabilitation therapy, laboratory tests, X-rays, mental health services,
ambulance services, and blood. Preventive care, such as flu shots, are
also covered.
Medicare Part C
Medicare Part C helps pay for hospital and medical costs not covered by
Parts A and B. Part C private insurance plans are offered through private
health insurance companies that are approved by Medicare. They are
referred to as Medicare Advantage Plans. They generally cover more of
the costs the patient would have to pay for out of pocket with Medicare
Parts A and B. Part C plans also put a limit on what you pay out of pocket
in a given year. Some of these plans cover preventive dental, vision, and
hearing costs.
Medicare Part D
Medicare Part D helps pay for prescription drugs and is available through
private health insurance companies. Called prescription drug plans, they
commonly cover brand-name and generic drugs. Coverage can differ from
one insurance carrier to the next. Part D is optional and available to those
who are enrolled in Medicare Parts A and B and most Medicare Advantage
plans.
Medicaid, Title XIX of the Social Security Act Amendments of 1965, is a
government program administered by the states that provides medical
services (both institutional and outpatient) to the medically needy. Federal
grants, in the form of matching funds, are issued to those states with qualifying
Medicaid programs. Medicaid is jointly sponsored and financed by the federal
government and several states. Medical care for needy persons of all ages is
provided under the definition of need established by each state. Each state
sets its own criteria for determining eligibility for services under its Medicaid
program.
The Health Insurance Portability and Accountability Act of 1996
The CMS is responsible for implementing various provisions of the Health
Insurance Portability and Accountability Act of 1996 (HIPAA). The
administrative simplification provisions of HIPAA require that the DHHS
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establish national standards for electronic healthcare transactions and national
identifiers for providers, health plans, and employers. It also addresses the
privacy of health data.
Public Health Service
The mission of the Public Health Service (PHS) is to promote the protection of
the nation’s physical and mental health. The PHS accomplishes its mission by
coordinating with the states in setting and implementing national health policy
and pursuing effective intergovernmental relations; generating and upholding
cooperative international health related agreements, policies, and programs;
conducting medical and biomedical research; sponsoring and administering
programs for the development of health resources, the prevention and control
of diseases, and alcohol and drug abuse; providing resources and expertise to
the states and other public and private institutions in the planning, direction,
and delivery of physical and mental healthcare services; and enforcing laws to
ensure drug safety and protection from impure and unsafe foods, cosmetics,
medical devices, and radiation- producing objects. Within the PHS are smaller
agencies responsible for carrying out the purpose of the division and DHHS;
these agencies are described next.
National Institutes of Health
The National Institutes of Health (NIH) is the principal federal biomedical
research agency. NIH is considered to be the largest biomedical research
agency in the world.
NIH’s mission is to seek fundamental knowledge about the nature and
behavior of living systems and the application of that knowledge to
enhance health, lengthen life, and reduce illness and disability. It is
responsible for conducting, supporting, and promoting biomedical
research.
The goals of the agency are:
to foster fundamental creative discoveries, innovative research
strategies, and their applications as a basis for ultimately protecting
and improving health;
to develop, maintain, and renew scientific human and physical
resources that will ensure the nation’s capability to prevent disease;
to expand the knowledge base in medical and associated sciences in
order to enhance the nation’s economic well-being and ensure a
continued high return on the public investment in research; and
to exemplify and promote the highest level of scientific integrity, public
accountability, and social responsibility in the conduct of science.
Centers for Disease Control and Prevention
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The Centers for Disease Control and Prevention (CDC) was established as an
operating health agency within the Public Health Service by the Secretary of
Health, Education, and Welfare on July 1, 1973. It is the lead federal agency
charged with protecting the public health of the nation by providing leadership
and direction in the prevention and control of diseases and other preventable
conditions and responding to public health emergencies. It administers
national programs for the prevention and control of communicable and vector-
borne diseases and other preventable conditions. It develops and implements
programs in chronic disease prevention and control, including consultation
with state and local health departments. It develops and implements programs
to deal with environmental health problems, including responding to
environmental, chemical, and radiation emergencies. The CDC also serves to
help other nations as they struggle with communicable diseases.
Food and Drug Administration
The Food and Drug Administration (FDA) is responsible “for protecting the
public health by assuring the safety, effectiveness, quality, and security of
human and veterinary drugs, vaccines and other biological products, and
medical devices. The FDA is also responsible for the safety and security of
most of our nation’s food supply, all cosmetics, dietary supplements and
products that give off radiation.”
Substance Abuse and Mental Health Services Administration
The Substance Abuse and Mental Health Services Administration’s mission is
to reduce the impact of substance abuse and mental illness on America’s
communities.
Health Resources and Services Administration
The Health Resources and Services Administration (HRSA) is the primary
federal agency for improving access to healthcare services for people who are
uninsured, isolated, or medically vulnerable. Its mission is to improve health
and achieve health equity through access to quality services, a skilled health
workforce, and innovative programs. HRSA takes a comprehensive approach
to addressing human immunodeficiency virus/acquired immune deficiency
syndrome (HIV/AIDS) with activities taking place across multiple bureaus and
offices designed to deliver care to people living with HIV or AIDS, expand and
strengthen the HIV care workforce, and improve access to and the quality of
HIV care and treatment.
Agency for Healthcare Research and Quality
The Agency for Healthcare Research and Quality (AHRQ) provides evidence-
based information on healthcare outcomes, quality, cost, use, and access.
Information from AHRQ’s research helps people make more informed
decisions and improve the quality of healthcare services.
Agency for Toxic Substances and Disease Registry
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The mission of the Agency for Toxic Substances and Disease Registry
(ATSDR) is to prevent or mitigate harmful exposures and related diseases by
applying science, taking responsive action, and providing trustworthy health
information.
Indian Health Service
The Indian Health Service (IHS) is an operating division within the DHHS that
provides a comprehensive federal health program for American Indians and
Alaska Natives who belong to federally recognized tribes. “The Indian Health
Care Improvement Act (IHCIA), the cornerstone legal authority for the
provision of health care to American Indians and Alaska Natives, was made
permanent when President Obama signed the bill on March 23, 2010, as part
of the Patient Protection and Affordable Care Act.”47
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▸ GOVERNMENT ETHICS
I weep for the liberty of my country when I see at this early day of its
successful experiment that corruption has been imputed to many
members of the House of Representatives, and the rights of the people have
been bartered for promises of office.
—Andrew Jackson
Ethics and the law are not mutually exclusive—they are intertwined. Without
the two, we would become a lawless land. The words of Abraham Lincoln and
Andrew Jackson, so eloquently spoken, resonate true today. Political
corruption, antisocial behavior, declining civility, and rampant unethical
conduct have heightened discussions over the nation’s moral decline and
decaying value systems. The numerous instances of questionable political
decisions, executives with shocking salaries, dishonesty at work and in school,
the entertainment industry, and dishonest news reporting, have all contributed
to this decline. Legislators, investigators, prosecutors, and the courts have
been quick to speak moral truths but continue to be slow in action. The
question remains: Can the decline in ethical behavior be reversed, as citizens
struggle with a broken legal system inundated with new laws? The answer is
more likely to be a return to practicing the virtues and values upon which this
nation was founded. Ethics and the law are not mutually exclusive—they are
intertwined throughout the text, providing an overview of government agencies
designed to protect each individual’s rights (e.g., the right to privacy and self-
determination).
Executive Branch: Office of Government Ethics
The Office of Government Ethics (OGE) is an agency within the executive
branch of government. The agency was established by the Ethics in
Government Act of 1978. Originally within the Office of Personnel
Management, OGE became a separate agency on October 1, 1989. The
Office of Government Ethics exercises leadership in the executive branch to
prevent conflicts of interest on the part of government employees, and to
resolve those conflicts of interest that do occur. In partnership with executive
branch agencies and departments, OGE fosters high ethical standards for
employees and strengthens the public’s confidence that the government’s
business is conducted with impartiality and integrity.
The OGE website provides information about the agency and services it
provides. The site helps people understand the executive branch ethics
program and its effort to reach federal employees and the general public.
Common ethical issues discussed on the website include gifts from outside
sources, gifts between employees, conflicting financial interests, remedies for
financial conflicts of interest, impartiality in performing official duties, seeking
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other employment, misuse of position, outside activities, postemployment,
representation to government agencies and courts, supplementation of salary,
financial disclosure, informal advisory letters and memorandum and formal
opinions, DAEOgrams (memoranda to agency ethics officials providing
guidance on how to interpret and comply with modifications or new issuances
of ethics laws, policies, and procedures; copies of the memoranda released
since 1992 are available in the DAEOgrams section of the OGE website), and
contractors in the workplace.
The public may lose confidence in the integrity of Government if it
perceives that an employee’s Government work is influenced by personal
interests or by payments from an outside source. An executive branch
employee’s Government work may have the potential to benefit the
employee personally, affect the financial interests of the employee’s family,
or involve individuals or organizations with which the employee has some
past, present, or future connection away from the employee’s Government
job. Separately, an employee might be offered a payment from a non-
Federal source, such as a former employer, either before or after entering
Government. Accordingly:
An employee may be disqualified from working on a particular
Government matter.
An employee may be prohibited from holding specified property.
An employee may be prohibited from accepting a payment from a
non-Federal source.
U.S. House of Representatives: Committee on Ethics
The Committee on Ethics is designated the “supervising ethics office” for the
House of Representatives. The jurisdiction of the Committee on Ethics is
derived from authority granted under House Rules and federal statutes.
The Committee on Ethics is unique in the House of Representatives.
Consistent with the duty to carry out its advisory and enforcement
responsibilities in an impartial manner, the Committee is the only standing
committee of the House of Representatives with its membership divided
evenly by party. These rules are intended to provide a fair procedural
framework for the conduct of the Committee’s activities and to help ensure
that the Committee serves the people of the United States, the House of
Representatives, and the Members, officers, and employees of the House
of Representatives.
The scope of the Committee’s jurisdiction under the various authorizing rules
and statutes involves duties and responsibilities related to:
Jurisdiction over all bills, resolutions, and other matters relating to the
Code of Official Conduct.
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Recommend administrative actions to establish or enforce standards of
official conduct.
Investigate alleged violations of the Code of Official Conduct or of any
applicable rules, laws, or regulations governing the performance of
official duties or the discharge of official responsibilities.
Report to appropriate federal or state authorities substantial evidence
of a violation of any law applicable to the performance of official duties
that may have been disclosed in a committee investigation.
Consider requests for written waivers of the gift rule.
Provide oversight over foreign gifts and gifts to superiors and other
federal employees.
Prohibit members, officers, and employees of the House of
Representatives from soliciting or receiving gifts.
The official Code of Conduct for the House of Representatives can be found
on its Committee on Ethics website at ethics.house.gov.
Senate: Select Committee on Ethics
(a) The ideal concept of public office, expressed by the words, “a public
office is a public trust,” signifies that the officer has been entrusted with
public power by the people; that the officer holds this power in trust to be
used only for their benefit and never for the benefit of himself or of a few;
and that the officer must never conduct his own affairs so as to infringe on
the public interest. All official conduct of Members of the Senate should be
guided by this paramount concept of public office.
The U.S. Senate Select Committee on Ethics consists of six members of the
Senate, three of whom shall be selected from members of the majority party
and three shall be selected from members of the minority party. The
committee is responsible for investigating complaints involving a violation of
the franking statute; financial disclosure statements; outside employment
with respect to members, officers, and employees of the Senate; foreign gifts
and decorations; gifts to an official superior or receiving gifts from employees
with a lower salary level; and prohibitions against members, officers, and
employees of the Senate soliciting or receiving gifts.
The Senate Select Committee on Ethics is authorized to receive and
investigate allegations of improper conduct that may reflect upon the Senate,
including violations of law, violations of the Senate Code of Official Conduct,
and violations of rules and regulations of the Senate; recommend disciplinary
action; recommend additional Senate rules or regulations to insure proper
standards of conduct; and report violations of law to the proper federal and
state authorities.
U.S. Judicial Code of Conduct
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As with other branches of government, federal judges are expected to abide
by a code of conduct that includes ethical principles and guidelines. “The Code
of Conduct provides guidance for judges on issues of judicial integrity and
independence, judicial diligence and impartiality, permissible extrajudicial
activities, and the avoidance of impropriety or even its appearance.” The
Code of Conduct for United States Judges includes the following ethical
canons:
Canon 1: A Judge Should Uphold the Integrity and Independence of the
Judiciary
Canon 2: A Judge Should Avoid Impropriety and the Appearance of
Impropriety in all Activities
Canon 3: A Judge Should Perform the Duties of the Office Fairly,
Impartially and Diligently
Canon 4: A Judge May Engage in Extrajudicial Activities that are
Consistent with the Obligations of Judicial Office
Canon 5: A Judge Should Refrain from Political Activity
Office of Congressional Ethics
The Office of Congressional Ethics (OCE) was created in March 2008 as an
independent, nonpartisan office, governed by a board comprising private
citizens, which provides more public review and insight into the ethical conduct
of members of the House of Representatives. The OCE reviews allegations of
misconduct against members, officers, and staff of the House and, when
appropriate, refers matters to the House Committee on Ethics. The OCE is not
authorized to determine if a violation occurred, nor is it authorized to sanction
members, officers, or employees of the House or to recommend sanctions.
The OCE is not able to provide advice or education on the rules and standards
of conduct applicable to members, officers, and employees of the House.
The mission of the OCE and its board is to assist the House in upholding high
standards of ethical conduct for its members, officers, and staff and, in so
doing, to serve the American people. The board of directors consists of eight
members, who are private citizens and cannot serve as members of Congress
or work for the federal government. Additional information regarding the
work of the OCE is available at its website oce.house.gov.
As the reader will note, there are a variety of laws and agencies that provide
oversight and regulations that are designed to protect the rights and safety of
all citizens. Government is a reflection of the people it serves. Failure of the
many to participate in the political process leads to government for the few
who do.
State Ethics Committees
Many states have legislative ethics committees that hear complaints of ethics
violations by legislators. They often investigate complaints and impose
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penalties for ethics-related violations. Duties vary among the state
committees. A state-by-state review can be found at
www.ncsl.org/research/ethics/table -of-legislative-ethics-committees.aspx.
“State legislatures pass ethics laws that impose restrictions on themselves and
lobbyists. To ensure these laws are kept, legislatures establish oversight
entities that include ethics committees, ethics commissions or a combination
of both. Internal ethics committees are an important way for legislatures to
solidify their credibility with the public.”61
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▸ POLITICAL MALPRACTICE
Nothing is politically right which is morally wrong.
—Daniel O’Connell (1755–1847)
Political malpractice is negligent conduct by an elected or appointed political
official. Ronald Brownstein wrote in a news column in the St. Petersburg
Times, “Practical steps are possible to help millions of low income families live
healthier lives and receive more effective care when they need it. Ignoring that
opportunity, while waiting for consensus on coverage, would be a form of
political malpractice.” The likelihood of a successful negligence case against
a member of Congress is doubtful. If such a case ever got through a
courtroom door, the following four elements of negligence would have to be
proven:
1. The first element necessary to prove political malpractice requires that
the plaintiff(s) be able to establish there is a duty to care. Establishing
this first element of negligence for a senator, for example, would be a
difficult hurdle. The oath of office for a senator is so amorphous that it
would be difficult to establish a duty to care, as illustrated in the following
quotes.
Oath of Office
I do solemnly swear (or affirm) that I will support and defend the
Constitution of the United States against all enemies, foreign and
domestic; that I will bear true faith and allegiance to the same; that I take
this obligation freely, without any mental reservation or purpose of
evasion; and that I will well and faithfully discharge the duties of the
office on which I am about to enter: So help me God.
Looking beyond the oath of office:
For nearly three-quarters of a century, that oath served nicely, although
to the modern ear it sounds woefully incomplete. Missing are the soaring
references to bearing “true faith and allegiance;” to taking “this obligation
freely, without any mental reservation or purpose of evasion”; and to
“well and faithfully” discharging the duties of the office.
Should a plaintiff be able to overcome this first element of negligence, thus
proving a duty to care, the remaining elements could be just as difficult to
establish.
2. The second element of political malpractice requires the plaintiff prove
that the duty to care was breached. Arguably, politicians, for example,
who agree to veto any program the President supports while he is in
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office, are contrary to the spirit of the law. The dilemma here requires the
plaintiff(s) to prove what specific duty to care was breached.
3. The third element of political malpractice requires proof of harm.
4. The fourth element requires proof of a causal connection between the
politician’s breach of duty and the harm suffered. In other words, the
plaintiff(s) must prove that the breach of duty was the proximate cause of
the plaintiff’s injury.
Senator Bob Dole, when speaking of Veterans Affairs Secretary Eric Shinseki
regarding allegations of mismanagement, falsified records, and long waits for
veterans in receiving health care, said, “If the facts reveal that he neglected his
duties, then he should go.” By May 30, 2014, Secretary Shinseki, a retired
general, resigned his office following the allegations with increasing pressure
from Congress for him to resign. Like medical malpractice, political malpractice
involves a failure to offer adequate healthcare services to help prevent the
bureaucratic quagmire of regulations that hinders the provision of health care
to those in need, as illustrated in the reality check The Coal Miner.
Flint, Michigan is not the only city concerned with questions that involve both
political malpractice and criminal conduct facing government employees and
officials regarding the health safety of drinking water. Residents of St. Joseph,
Louisiana, for example, are concerned with drinking and bathing in murky
brown water. The Louisiana health department claims tests show that there
are no dangerous amounts of chemicals in St. Joseph’s water supply.
However, this does not ease the fears of those living there. It is an ethical
dilemma involving trust. Government officials are not willing to drink the water,
why should the public. While conducting a survey in Louisiana and 10 years
before St. Joseph became the focus of public and media scrutiny, a hospital
surveyor described his water pollution concerns, as described in the reality
check Hospital Water Questioned.
The New Jersey Health Department’s website references public concern over
the safety of tap water in the Dover Township/Toms River area of Ocean
County as far back as 1995 [www.nj.gov /health/eohs/dovertwp.shtml], where
the occurrence of childhood cancer has been a concern for many years and
linked to the drinking water. This website illustrates the difficulty in bringing
closure to the people’s concerns for the health and welfare of their children.
Community outrage continues because of the slow pace in addressing public
concerns about contaminated water. Government officials elected as the
guardians of the communities they serve continue down the slippery slope of
distrust.
THE COAL MINER
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It was December 1989 when Larry, the hospital administrator, was making
his morning visits to various departments, as he often did each day with both
staff and patients. While visiting a medical unit he visited with Jimmy, one of
the patients. Larry asked Jimmy, “Are we taking good care of you?” He said,
“Yes.” He then turned to a man who was on the opposite side of his bed and
said, “This is my brother Bill.” Bill, looking at Larry, choked up and asked,
“Can you help my brother? He has given up the will to live. Please help my
brother want to live.” I looked at Jimmy lying there in his bed, fragile and
struggling to breathe between each word, as he said, “I can no longer carry
on this way. I am ready to move on. I’m a tired old man. I have fought so
long. I’ve needed benefits for so many years for my family and myself. I
have had many promises over of the years of people promising to help me.
But up until this moment in time, no one was able to help me. I have black
lung disease. I struggle to breathe.” He then turned, looking over to Bill, and
said, “My brother also has black lung disease. We worked together in the
coalmines for many years. This is our reward.” I looked at Jimmy and slowly
back to Bill and said, “I will have my staff help facilitate you in getting the
help you need.” As we said our goodbyes, I thought to myself, as I left the
room, Jimmy has fought so long. He has asked for so little, a man forgotten
by incompetent and corrupt bureaucratic leadership.
Michigan Governor Rick Snyder has admitted that the government failed the
people. The following news article and reality check illustrate how the
nation’s government, on the highest levels, continues to fail the people
throughout the nation, from as far north as Michigan to as far south as
Louisiana.
HOW WATER CRISIS IN FLINT, MI BECAME FEDERAL
STATE OF EMERGENCY
Michigan Gov. Rick Snyder gave a State of the State address Tuesday
night, following remarks he made a day earlier on how he’s made mistakes
in handling the Flint, Michigan water crisis.
“I’m sorry and I will fix it,” Snyder said near the opening of his speech,
directly addressing the residents of Flint. “Government failed you at the
federal, state and local level.”
—Jessica Durando, USA Today, January 20, 2016
Ethicists in Public Service
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Although not all cities may need to hire an ethicist in order to set priorities, it
may be helpful in certain types of decisions. An independent, unbiased,
professionally trained decision maker from who is an “outsider” may be more
acceptable to councils, mayors, citizens, employees, or the press than one
derived from inside the political arena. The city of Alexandria, Virginia, in 2008,
“hired an ethics consultant for $9,000 per year. Cities must make decisions to
set priorities when allocating scarce resources. City council members, mayors,
and city managers have available the advice of the city attorney and/or their
professional organizations when faced with ethical dilemmas.” This is
particularly helpful in the decision-making process when decisions involve a
reduction or elimination of services to the public, especially services to the
elderly, disabled, or less fortunate.
HOSPITAL WATER QUESTIONED
Joe was in Shreveport, Louisiana. It was Sunday evening about 11:00 PM.
Joe opened his computer to review his itinerary on his company’s website
when he noticed that the survey starting date for a small community hospital
in south central Louisiana had been changed from Tuesday to Monday. The
rush began. He packed his clothes, loaded his rental car, and checked out
of the hotel, accidentally leaving his suits behind.
Joe arrived at the new hotel at about 2:00 AM. He checked in and
unpacked. Joe turned on the water and found it was a mucky brown color.
He called the front desk to question the water that flowed into the sink, tub,
and toilet. After a bit of a chuckle, the desk associate said, “It’s OK. It’s
always brown.” Joe thought to himself, “Well, at least the hospital will have
clear, clean water.”
The following day, Carol, the survey coordinator, greeted Joe and his survey
team in the hospital lobby. Carol escorted the survey team to a conference
room, which was assigned to the team as a home base during the survey.
The first thing Joe noticed was bottled water, apple juice, and orange juice
packed in ice on the boardroom table. He thought, “Oh happy day.” He then
went to the small sink in the anteroom of the boardroom to wash his hands.
Joe observed that the water was a brown in color, just a bit lighter than the
water at the hotel. Before leaving the room, Carol said, “If you need
anything, I’ll be just across the hall.” Joe quickly replied, “There is something
I have some concern with—the quality of the water here in central
Louisiana.” Carol replied, “Oh no, it’s OK. It’s been tested by the health
department.” Joe replied, “Could you please show me any documentation
you have on file that I can review.” Carol replied, “OK, I’ll see what we have
on file.” By the end of the survey, there was no health department
paperwork available in the hospital for Joe to review. He suggested that an
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attempt be made to seek clarification from the health department, in writing,
regarding the safe use of the hospital’s water source.
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▸ CHAPTER REVIEW
1. A law is a general rule of conduct that is enforced by the government.
When a law is violated, the government imposes a penalty.
Public laws deal with the relationships between individuals and
the government.
Private laws deal with relationships among individuals.
2. Common law is derived from judicial decisions. During the colonial
period, the United States based its law on English common law, but
states had the authority to modify their legal systems. As a result, there
is no uniform system of common law among the states.
Precedent—a judicial decision that may be used as a standard
in subsequent similar cases. A precedent is set when a court
decision is rendered that serves as a rule for future guidance
when deciding similar cases.
Res judicata—“the thing is decided”—refers to that which has
been previously acted on or decided by the courts—a final
judgment rendered by a court of competent jurisdiction on the
merits is conclusive as to the rights of the parties and their
privies, and, as to them, constitutes an absolute bar to
subsequent action involving the same claim, demand, or cause
of action.
Stare decisis—common law principle (“let the decision stand”)
provides that when a decision is rendered in a lawsuit involving
a particular set of facts, another lawsuit involving an identical or
substantially similar situation is to be resolved in the same
manner as the first lawsuit.
Original jurisdiction—authority of a court to first conduct a trial.
Appellate jurisdiction—authority of a court to hear appeals from
trial court decisions.
3. Statutory law is written law that emanates from legislative bodies.
A statute can abolish any rule of common law.
The Constitution is the highest level of enacted law; it takes
precedence over the constitutions and laws of specific states
and local jurisdictions.
Statutory law can be amended, repealed, or expanded by the
legislature. States and local jurisdictions can only enact and
enforce laws that do not conflict with federal laws.
4. Administrative law is public law issued by administrative agencies to
administer the enacted laws of the federal and state governments.
Administrative agencies implement and administer the
administrative law.
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The rules and regulations established by an agency must be
administered within the scope of the authority delegated to the
agency by Congress.
Agency regulations and decisions can be subject to judicial
review.
Each state has its own system of administrative law.
5. Separation of powers provides that no one branch of the government—
legislative, executive, or judicial—will be clearly dominant over the
other two.
Legislative branch enacts, amends, and/or repeals existing
laws.
Executive branch administers and enforces the law.
Judicial branch resolves disputes in accordance with the law.
6. The Department of Health and Human Services (DHHS) develops and
implements administrative regulations for carrying out national health
and human services policy objectives through various agencies within
DHHS.
7. Ethics and the law are not mutually exclusive—they are intertwined.
Government ethics committees include:
Executive branch: Office of Government Ethics
U.S. House of Representatives: Committee on Ethics
Senate: Select Committee on Ethics
Judicial branch: U.S. Judicial Code of Conduct
Office of Congressional Ethics
8. Political malpractice is negligent conduct by an elected or appointed
political official.
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▸ REVIEW QUESTIONS
1. Define the term law and describe the sources from which law is
derived.
2. Define the legal terms precedent, res judicata, stare decisis, original
jurisdiction, and appellate jurisdiction.
3. Describe the function of the three branches of government.
4. What is the meaning of separation of powers?
5. What is the function of an administrative agency?
6. Describe why the Department of Health and Human Services was
created.
116

▸ NOTES
1. Bernard Schwartz, The Law in America (New York: McGraw-Hill, 1974), 1.
2. 5 U.S. (Cranch) 137, 163 (1803).
3. The Law Dictionary, “What is Public Law?” http://thelawdictionary.org/public-
law/
4. Pierce v. Ortho Pharmaceutical Corp., 417 A.2d 505, 512 (N.J. 1980).
5. Cruzan v. Director, Missouri Department of Health, 496 U.S. 261, 110 S.Ct.
2841 (1990).
6. A.K.R. Kiralfy, Potter’s Historical Introduction to English Law (London, UK:
Sweet & Maxwell, 1962), 9.
7. John Reeves, History of the English Law (London, UK: Reed and Hunter,
1814), 2.
8. Id.
9. George W. Keeton, English Law (Newton Abbot, UK: David & Charles, 1974),
70.
10. Id.
11. Id.
12. Kiralfy, supra note 6, at 9–10.
13. Schwartz, supra note 1, at 29.
14. Lawrence Friedman, A History of American Law (New York, NY: Touchstone
Books, 1985), 92.
15. Lebron v. Gottlieb Memorial Hospital, Docket Nos. 105741, 105745 cons., (Ill.
February 4, 2010).
16. Cal. Civ. Code §3333.2(b) (West 2009).
17. Fla. Stat. §766.118 (2009).
18. People v. Caballes, 221 Ill. 2d 282, 313 (2006).
19. Black’s Law Dictionary, 6th ed. (Eagan, MN: 1990), 1305.
20. 2 Root 90, 92 (Conn. 1794).
21. U.S. Department of Health and Human Services, Task Force on Medical
Liability and Malpractice (Washington, DC: Author, 1987), 3.
22. Id.
23. Zinman, “Study Finds Hospitals ‘Harm’ Some,” Newsday, March 1, 1990, 17.
24. The Robert Wood Johnson Foundation, “The Tort System for Medical
Malpractice: How Well Does It Work, What Are the Alternatives?” Abridge,
Spring 1991, 2.
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PUBLIC LAW

25. The Robert Wood Johnson Foundation, “Negligent Medical Care: What Is It,
Where Is It, and How Widespread Is It?” Abridge, Spring 1991, 6.
26. D. Sharp, “Errors Renew the Call for Doctor Review,” USA Today, March 27,
1995, 2.
27. K. Painter, “Breast Cancer Top Cause of Malpractice Complaints,” USA Today,
June 15, 1996, 1.
28. Sandra B. Goodman, “As Hands-on Doctoring Fades Away, Patients Lose,”
The Washington Post, May 20, 2014, E1.
29. Becker’s Hospital Review, “Legal & Regulatory Issues: 29 Statistics on Medical
Malpractice Payouts and Lawsuits,”
http://www.beckershospitalreview.com/legal-regulatory-issues/29-
statistics-on-medical-malpractice-payouts-and-lawsuits.html
30. U.S. Constitution, art. 6, § 1, cl. 2.
31. 5 U.S.C.S. §§ 500–576 (Law. Co-op. 1989).
32. An “agency means each authority of the Government of the United States, …
but does not include (A) the Congress; the Courts of the United States; …” 5
U.S.C.S. § 551(1) (Law. Co-op. 1989).
33. 5 U.S.C.S. § 702 (Law. Co-op. 1989).
34. 5 U.S.C.S. § 706 (Law. Co-op. 1989).
https://www.gpo.gov/fdsys/pkg/USCODE-2010-title5/html/USCODE-2010-
title5-partI-chap7-sec706.htm.
35. 401 A.2d 872 (Pa. Commw. Ct. 1979).
36. Id. at 873
37. Department of Human Serv. v. Berry, 764 S.W.2d 437 (Ark. 1989).
38. Id. at 439
39. 88 F.R.D. 583 (E.D. Mich. 1980).
40. Yahoo!, “U.S. Government Departments and Agencies,”
http://dir.yahoo.com/Government/U_S__Government/Executive_Branch/Departments_and_Agencies/
41. Donald Levitan and Elwyn E. Mariner, Your Massachusetts Government, 10th
ed. (Newton Center, MA: Government Research Publications, 1984), 14.
42. Heritage of Yankton, Inc. v. South Dakota Dep’t. of Health, 432 N.W.2d 68, 77
(S.D. 1988).
43. Marbury v. Madison, 5 U.S. (Cranch) 137, 180 (1803).
44. Government Publishing Office, “The United States Government Manual:
Executive Branch: Departments,” https://www.gpo.gov/fdsys/pkg/GOVMAN-
2015-07-01/xml/GOVMAN-2015-07-01-117.xml
45. National Institutes of Health, “What We Do: Mission and Goals,”
https://www.nih.gov/about-nih/what-we-do/mission-goals
118

http://www.beckershospitalreview.com/legal-regulatory-issues/29-statistics-on-medical-malpractice-payouts-and-lawsuits.html

https://www.gpo.gov/fdsys/pkg/USCODE-2010-title5/html/USCODE-2010-title5-partI-chap7-sec706.htm

http://dir.yahoo.com/Government/U_S__Government/Executive_Branch/Departments_and_Agencies/

https://www.gpo.gov/fdsys/pkg/GOVMAN-2015-07-01/xml/GOVMAN-2015-07-01-117.xml

https://www.nih.gov/about-nih/what-we-do/mission-goals

46. U.S. Food and Drug Administration, “FDA Fundamentals,”
http://www.fda.gov/AboutFDA/Transparency/Basics/ucm192695.htm
47. Indian Health Service, “Indian Health Care Improvement Act,”
http://www.ihs.gov/ihcia/
48. U.S. Office of Government Ethics, http://www.usoge.gov
49. U.S. Office of Government Ethics, “Financial Conflicts of Interest,”
https://www.oge.gov/web/oge.nsf/Financial+Conflicts+of+Interest
50. Committee on Ethics, “Committee Rules,”
http://ethics.house.gov/about/committee-rules
51. Committee on Ethics, “Jurisdiction,” http://ethics.house.gov/jurisdiction
52. United States Senate Select Committee on Ethics, “Jurisdiction,”
http://www.ethics.senate.gov/public/index.cfm/jurisdiction
53. U.S. Senate Select Committee on Ethics, “Rules of Procedure,”
http://www.ethics.senate.gov/public/index.cfm/files/serve?
File_id=551b39fc-30ed-4b14-b0d3-1706608a6fcb
54. Franking Commission, “What is the Frank?” https://cha.house.gov/franking-
commission/what-frank.
55. U.S. Senate Select Committee on Ethics, “Jurisdiction,”
http://www.ethics.senate.gov/public/index.cfm/jurisdiction
56. Id.
57. U.S. Courts, “Code of Conduct,”
http://www.uscourts.gov/RulesAndPolicies/CodesOfConduct.aspx
58. USCourts.gov, “Code of Conduct for United States Judges,”
http://www.uscourts.gov/judges-judgeships/code-conduct-united-states-
judges#f.
59. Office of Congressional Ethics, “Frequently Asked Questions,”
http://oce.house.gov/faq.html.
60. Id.
61. National Conference of State Legislatures, “State Ethics Committees,”
http://www.ncsl.org/research/ethics/table-of-legislative-ethics-
committees.aspx
62. Ronald Brownstein, “Health Care Safety Net Stretched Thin,” St. Petersburg
Times, June 4, 2004, Section A, 13a.
63. U.S. Senate, “Oath of Office,”
http://www.senate.gov/artandhistory/history/common/briefing/Oath_Office.htm
64. Id.
65. Susan Page, “Veterans Affairs A ‘Disaster’,” The Washington Post, May, 23,
2014, 1A.
119

http://www.fda.gov/AboutFDA/Transparency/Basics/ucm192695.htm

http://www.ihs.gov/ihcia/

http://www.usoge.gov

https://www.oge.gov/web/oge.nsf/Financial+Conflicts+of+Interest

http://ethics.house.gov/about/committee-rules

http://ethics.house.gov/jurisdiction

http://www.ethics.senate.gov/public/index.cfm/jurisdiction

http://www.ethics.senate.gov/public/index.cfm/files/serve?File_id=551b39fc-30ed-4b14-b0d3-1706608a6fcb

https://cha.house.gov/franking-commission/what-frank

http://www.ethics.senate.gov/public/index.cfm/jurisdiction

http://www.uscourts.gov/RulesAndPolicies/CodesOfConduct.aspx

http://www.uscourts.gov/judges-judgeships/code-conduct-united-states-judges#f

http://oce.house.gov/faq.html

http://www.ncsl.org/research/ethics/table-of-legislative-ethics-committees.aspx

http://www.senate.gov/artandhistory/history/common/briefing/Oath_Office.htm

66. Ethics in Public Service, “Alexandria Hires Ethics Consultant,” April 9, 2009,
http://urpa5358group2.wordpress.com/2009/01/31/alexandria-hires-
ethics-consultant/
67. Laura Olson, “URPA 5358 Group 2,” January 2, 2009,
http://urpa5358group2.blogspot.com
120

Alexandria Hires Ethics Consultant

http://urpa5358group2.blogspot.com

© photogl/Shutterstock
121

CHAPTER 3
Tort Law—Negligence
IT’S YOUR GAVEL…
THE COURT WAS APPALLED
The plaintiff, while in the custody of the defendant penal institution, alleged
that because the defendant’s employees failed to timely diagnose her breast
cancer, her right breast had to be removed. The defendant contended that
even if its employees were negligent, the plaintiff’s cancer was so far
developed when discovered that it would nevertheless have required
removal of her breast.
Pursuant to the defendant’s policy of medically evaluating all new inmates,
on May 26, Dr. Evans gave the plaintiff a medical examination. He testified
that his physical evaluation included an examination of the plaintiff’s breasts.
However, he stated that his examination was very cursory.
The day following her examination, the plaintiff examined her own breasts.
At that time, she discovered a lump in her right breast, which she
characterized as being about the size of a pea. The plaintiff then sought an
additional medical evaluation at the defendant’s medical clinic. Testimony
indicated that fewer than half of the inmates who sign the clinic list are
actually seen by medical personnel the next day after signing their name.
Also, those not examined on the day for which the list is signed are given no
preference in being examined on the following day. Their names are simply
deleted from the daily list, and their only recourse is to continually sign the
list until they are examined. The evidence indicated that after May 27, the
plaintiff constantly signed the clinic list and provided the reason she was
requesting medical care.
A nurse finally examined the plaintiff on June 21. The nurse noted in her
nursing notes that the plaintiff had a “moderate large mass in right breast.”
The nurse recognized that the proper procedure was to measure such a
mass, but she testified that this was impossible because no measuring
device was available. The missing measuring device to which she alluded
was a simple ruler. The nurse concluded that Evans should again examine
the plaintiff.
On June 28, Evans again examined the plaintiff. He recorded in the
progress notes that the plaintiff had “a mass on her right wrist. Will send her
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to hospital and give her Benadryl for allergy she has.” Evans meant to write
“breast” not “wrist.”
He failed to measure the size of the mass on the plaintiff’s breast. The
plaintiff was eventually transferred to the Franklin Pre-Release Center
(FPRC) on September 28. On September 30, when a nurse at FPRC
examined the plaintiff; the nurse recorded that the plaintiff had a “golf ball”-
sized lump in her right breast. The plaintiff was transported to the hospital on
October 27, where Dr. Walker treated her. The plaintiff received a
mammogram examination, which indicated that the tumor was probably
malignant. This diagnosis was confirmed by a biopsy performed on
November 9. The plaintiff was released from confinement on November 13.
On November 16, Dr. Lidsky, a surgeon, examined the plaintiff. Lidsky noted
the existence of the lump in the plaintiff’s breast and determined that the
size of the mass was approximately 4 to 5 centimeters and somewhat fixed.
He performed a modified radical mastectomy upon the plaintiff’s right breast,
by which nearly the plaintiff’s entire right breast was removed. A suit was
filed.
WHAT IS YOUR VERDICT?
Every instance of a man’s suffering the penalty of the law is an
instance of the failure of that penalty in effecting its purpose, which is
to deter from transgression.
—Richard Whately
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▸ LEARNING OBJECTIVES
The reader, upon completion of this chapter, will be able to:
Describe what a tort is and the objectives of tort law.
Define negligence and explain the distinction between negligence and
malpractice.
Explain how the commission and omission of an act differ.
Explain the elements necessary to prove a negligence case.
Describe the importance of foreseeability in a negligence case.
This chapter introduces the reader to the study of 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 (e.g., reputation, privacy), property (real
or personal) for which a court provides a remedy in the form of compensation
for damages suffered. Tort actions are a concern to caregivers both personally
and professionally. Caregivers should be armed with the knowledge necessary
to improve their understanding of their rights and responsibilities in the
healthcare setting.
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▸ OBJECTIVES OF TORT LAW
The basic objectives of tort law are: (1) preservation of peace between
individuals by providing a substitute for retaliation; (2) culpability (to find fault
for wrongdoing); (3) deterrence (to discourage the wrongdoer [tortfeasor] from
committing future wrongful acts, as well as, deter others from committing
wrongdoing); and (4) compensation (to indemnify the injured party to a
lawsuit).
Compensation for adverse medical outcomes typically takes the form of
financial damages. When finding fault, the court must determine who should
bear the cost of an unfavorable outcome—the patient-plaintiff or the provider-
defendant. The plaintiff must prove negligence by the defendant. Conversely,
the defendant argues a case to avoid fault determination. Underlying this
adversarial proceeding is the assumption that when a defendant bears the
cost of a negligent act, there will be a decline in similar acts. Although
professional liability insurance helps to insulate a provider from financial loss,
the fear is ever present that the monetary award may exceed the provider’s
coverage limits.
The three basic categories of tort law are (1) negligent torts; (2) intentional
torts (e.g., assault, battery, false imprisonment, invasion of privacy, infliction of
mental distress); and (3) 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
(e.g., products liability). Negligence is reviewed in the next section.
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▸ NEGLIGENCE
Negligence is a tort, a civil or personal wrong. It is the unintentional
commission or omission of an act that a reasonably prudent person would or
would not do under given circumstances.
Commission of an act would include, for example:
Administering the wrong medication
Administering the wrong dosage of a medication
Administering medication to the wrong patient
Performing a surgical procedure without the patient’s consent
Performing a surgical procedure on the wrong patient or body part
Performing the wrong surgical procedure
Omission of an act would include, for example:
Failure to conduct a thorough history and physical examination
Failure to assess and reassess a patient’s nutritional needs
Failure to administer medications as prescribed
Failure to order diagnostic tests
Failure to follow up on abnormal or critical test results
Failure to conduct a “time out” to insure that the correct surgical
procedure is being performed on the correct patient at the correct site
Negligence is a form of conduct caused by heedlessness or carelessness that
constitutes a departure from the standard of care generally imposed on
reasonable members of society. It can occur when, after considering the
consequences of an act, a person does not exercise the best possible
judgment; when one fails to guard against a risk that should be appreciated; or
when one engages in behavior expected to involve unreasonable danger to
others. Negligence or carelessness of a professional person (e.g., nurse
practitioner, pharmacist, physician, physician assistant) is referred to as
malpractice, whereas criminal negligence is the reckless disregard for the
safety of another (e.g., willful indifference to an injury that could follow an act).
Thousands of deaths occur each year as a result of medical errors. Although
medical errors often involve misdiagnosis, delayed diagnosis, failure to
diagnose, surgical errors, and prescription errors, not all medical errors are
necessarily malpractice. Most medical or surgical interventions involve some
degree of risk. It is the responsibility of the treating professional to inform his
or her patient as to the inherent risks, benefits, and alternatives of a proposed
treatment or procedure.
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▸ FORMS OF NEGLIGENCE
The three basic forms of negligence in FIGURE 3-1 are as follows:
1. Malfeasance: Performance of an unlawful or improper act (e.g.,
performing an abortion in the third trimester when prohibited by state
law)
2. Misfeasance: Improper performance of an act, resulting in injury to
another (e.g., administering the wrong dose of a medication, wrong site
surgery (e.g., removal of a healthy kidney instead of the diseased
kidney , removal of the healthy breast instead of the diseased breast ,
removal of the wrong leg during surgery )
3. Nonfeasance: Failure to act when there is a duty to act as a
reasonably prudent person would in similar circumstances (e.g., failure
to administer medications, failure to order diagnostic tests or prescribe
necessary medications)
FIGURE 3-1 Forms of negligence.
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▸ DEGREES OF NEGLIGENCE
The use of the terminology, “degrees of negligence,” more aptly describes
three generally accepted “degrees of care” that can affect the amount of
damages in a negligence case.
1. Slight: Minor deviation of what is expected under the circumstances.
2. Ordinary: Failure to do what a reasonably prudent person would or
would not do under the circumstances.
3. Gross: The intentional or wanton omission of required care or
performance of an improper act.
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▸ ELEMENTS OF NEGLIGENCE
The following four elements of negligence (FIGURE 3-2) must be proven in
order for a plaintiff to recover damages for negligence. When the four
elements of negligence have been proven, the plaintiff is said to have
presented a prima facie case of negligence, thus enabling the plaintiff to
prevail in a lawsuit. The foundation of the columns in Figure 3-2 illustrates
examples of negligent acts. The pillars represent each element of negligence
that must be proven in order to establish that a negligent act has occurred.
Any unproven element of negligence will defeat a lawsuit based on
negligence.
FIGURE 3-2 The four elements of an act of negligence.
1. Duty to care
Obligation to conform to a recognized standard of care.
2. Breach of duty
Deviation from the recognized standard of care.
Failure to adhere to an obligation.
3. Injury
Actual damages must be established.
If there are no injuries, monetary damages cannot be awarded
the plaintiff(s).
4. Causation
Departure from the standard of care must be the cause of the
plaintiff’s injury.
The injury must be foreseeable.
Duty to Care
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Duty to care is defined as a legal obligation of care, performance, or
observance imposed on one to safeguard the rights of others. Duty can arise
from a special relationship such as that between a physician, nurse, or
pharmacist and a patient. The existence of this relationship implies that a
caregiver–patient relationship was in effect at the time an alleged injury
occurred. In the case of a physician, duty to care can arise from a simple
telephone conversation or out of a caregiver’s voluntary act of assuming the
care of a patient. Duty also can be established by statute or contract between
the plaintiff and the defendant.
Duty to care is depicted in FIGURE 3-3, where the pharmacy manager of
General Hospital’s pharmacy, prior to leaving work for the day, assigns
responsibility to the pharmacist behind the counter, telling her, “You’re in
charge of the pharmacy, which includes the IV admixture room. Your duties
and responsibilities are those as described in the pharmacy department policy
and procedure manual. I will be leaving in an hour, so you should review them
before I leave. If you have any questions after I leave, you can reach me on
my cell phone.” This assignment established a duty on the part of the
pharmacist to adhere to the policies and procedures in the department
manual.
FIGURE 3-3 Duty to save.
© Tyler Olsen/Shutterstock, Inc.
Breach of duty, injury, and causation are further illustrated next under the
relevant headings.
Hastings Case: Duty to Stabilize the Patient
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The surviving parents in Hastings v. Baton Rouge Hospital brought a medical
malpractice action for the wrongful death of their 19-year-old son. The action
was brought against the hospital; Dr. Gerdes, the emergency department (ED)
physician; and the thoracic surgeon on call, Dr. McCool. The patient was
brought to the ED at 11:56 PM because of two stab wounds and weak vital
signs. Gerdes decided that a thoracotomy (an incision into the pleural space of
the chest) had to be performed. He was not qualified to perform the surgery
and called Dr. McCool, who was on call that evening for thoracic surgery.
Gerdes described the patient’s condition, indicating that the patient had been
stabbed in a major blood vessel. At trial, McCool claimed that he did not recall
Gerdes saying that a major blood vessel could be involved. McCool asked
Gerdes to transfer the patient to the Earl K. Long Hospital. Gerdes said, “I
can’t transfer this patient.” McCool replied, “No. Transfer him.” Kelly, an ED
nurse on duty, was not comfortable with the decision to transfer the patient
and offered to accompany him in the ambulance. Gerdes reexamined the
patient, who exhibited marginal vital signs, was restless, and was draining
blood from his chest. The ambulance service was called at 1:03 AM, and by
1:30 AM, the patient had been placed in the ambulance for transfer. The
patient began to fight wildly, the chest tube came out, and the bleeding
increased. An attempt to revive him from a cardiac arrest was futile, and the
patient died after having been moved back into the ED. The patient virtually
bled to death in the ED.
The duty to care in this case cannot be reasonably disputed. Louisiana, by
statute, imposes a duty on hospitals licensed in Louisiana to make emergency
services available to all persons residing in the state regardless of insurance
coverage or economic status. The hospital’s own bylaws provide that patient
transfer should never occur without due consideration for the patient’s
condition. The 19th Judicial District Court directed a verdict for the defendants,
and the plaintiffs appealed. The court of appeals affirmed the district court’s
decision. On further appeal, the Louisiana Supreme Court held that the
evidence presented to the jury could indicate the defendants were negligent in
their treatment of the victim. The findings of the lower courts were reversed,
and the case was remanded for trial.
Hospitals are required to stabilize the patient prior to transfer. In this case,
there was a surgeon on call who was available to treat this patient. McCool
decided to practice telephone medicine and made the unfortunate decision to
transfer the patient, which resulted in risking the life of an unstable patient,
leading to his death.
Duty to Treat Emergency Patients
In O’Neill v. Montefiore Hospital, the duty owed to the patient was clear. Mr.
O’Neill had been experiencing pain in his chest and arms. He had walked with
his wife to the hospital at 5:00 AM for care. After arriving at the hospital,
O’Neill explained his pain. Upon learning that O’Neill was a member of the
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Hospital Insurance Plan (HIP), the ED nurse stated that the hospital had no
connection with HIP. The nurse contacted Dr. Graig, an HIP physician, and
explained O’Neill’s symptoms. He allegedly suggested O’Neill be treated by an
HIP physician later in the morning, at 8:00 AM. The nurse then handed the
phone to O’Neill, who said to Dr. Graig, “Well, I could be dead by 8 o’clock.”
Following his phone conversation with Dr. Graig, O’Neill spoke to the nurse,
indicating that he had been told to go home and come back when HIP was
open. Mrs. O’Neill, concerned about her husband, asked that a physician see
her husband immediately. The nurse again requested that they return at 8:00
AM. Mrs. O’Neill said he could be dead by 8:00 AM. No help was offered, and
the O’Neills left the ED to return home. O’Neill paused occasionally on his way
home to catch his breath. Shortly after arriving home, he fell to the floor and
expired. The plaintiff sought recovery against the hospital for failure to render
necessary emergency treatment and against the physician for his failure and
refusal to treat O’Neill. Dr. Graig claimed that he had offered to come to the
ED but that O’Neill said he would wait and see a HIP physician that morning.
The New York Supreme Court for Bronx County entered a judgment
dismissing the plaintiff’s complaint, and the plaintiff appealed the court’s ruling.
The New York Supreme Court, Appellate Division, reversed the lower court’s
decision and held that a physician who abandons a patient after undertaking
examination or treatment can be held liable for malpractice. The proof of the
record in this case indicated that the physician undertook to diagnose the
ailments of the deceased by telephone, thus establishing at least the first
element of negligence—duty to use due care. The finding of the trial court was
reversed, and a new trial was ordered.
Duty to Hire Competent Employees
Texas courts recognize that an employer has a duty to hire competent
employees, especially if they are engaged in an occupation that could be
hazardous to life and limb and requires skilled or experienced persons. For
example, the appellant in Deerings West Nursing Center v. Scott was found
to have negligently hired an employee that the appellant knew or should have
known was incompetent, thereby causing unreasonable risk of harm to others.
In this case, an 80-year-old visitor had gone to Deerings to visit her infirm
older brother. During one visit, Nurse Hopper, a 6-foot-4-inch male employee
of Deerings, confronted the visitor to prevent her from visiting. The visitor
recalled that he was angry and just stared. She stated that upon his approach,
she had thrown up her hands to protect her face, but he hit her on the chin,
slapped her down on the concrete floor, and got on top of her, pinning her to
the floor.
Hopper testified that he was hired sight unseen over the telephone by
Deerings’s director of nursing. Even though the following day, Hopper
completed an application at the nursing facility, he still maintained that he was
hired over the phone. In his application, he falsely stated that he was a Texas
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licensed vocational nurse (LVN). Additionally, he claimed that he had never
been convicted of a crime. In reality, he had been previously employed by a
bar, was not an LVN, had committed more than 56 criminal offenses of theft,
and was on probation at the time of his testimony.
The trial court awarded the plaintiff a judgment of $35,000 for actual damages
and $200,000 in punitive damages. The court of appeals held that there was
sufficient evidence to support the findings that the employee’s failure to obtain
a nursing license was the proximate cause of the visitor’s damages and that
the hiring was negligent and also showed a heedless and reckless disregard
of the rights of others.
It is common knowledge that the bleakness and rigors of old age, drugs,
and the diseases of senility can cause people to become confused . . . and
cantankerous. It is predictable that elderly patients will be visited by elderly
friends and family. It is reasonable to anticipate that a man of proven moral
baseness would be more likely to commit a morally base act on an 80-
year-old woman. Fifty-six convictions for theft is some evidence of mental
aberration. Hopper was employed not only to administer medicine but also
to contend with the sometimes erratic behavior of the decrepit. The
investigative process necessary to the procurement of a Texas nursing
license would have precluded the licensing of Hopper. In the hiring of an
unlicensed and potentially mentally and morally unfit nurse, it is reasonable
to anticipate that an injury would result as a natural and probable
consequence of that negligent hiring.
Deerings West Nursing Center showed a clear duty of care. The appellant
violated the very purpose of Texas licensing statutes by failing to verify
whether Hopper held a current LVN license. The appellant then placed him in
a position of authority, allowed him to dispense drugs, and made him a shift
supervisor. This negligence eventually resulted in the inexcusable assault on
an elderly woman.
Duty to Nursing Facility Patient
A concise statement of the duty a nursing facility owes to its residents is found
in Lagrone v. Helman where an action was brought against the operator of
the nursing facility for injuries sustained by the resident in a fall. The trial court,
which rendered judgment for the defendant, stated in its instructions to the
jury, “It was the duty of the defendants to use reasonable care for the safety of
the appellant, consistent with her age and physical condition.” The
plaintiff/appellant appealed the trial court’s decision and the Supreme Court of
Mississippi affirmed the trial court’s decision. The resident was an ambulatory
resident in the defendant nursing facility who suffered from cerebral
arteriosclerosis, which subjected her to occasional dizzy spells. She had
requested medication from a nurse employed by the facility and had followed
her to the medicine cabinet. There were two conflicting statements as to what
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occurred next. The plaintiff claimed that, after obtaining the medicine, the
nurse suddenly, carelessly, and negligently whirled around and struck her,
knocking her down and causing her to suffer a fracture of her left hip. The
facility claimed that the nurse handed the pill to the plaintiff, who dropped it,
and in bending over to pick it up, became dizzy and fell to the floor. Although
judgment was entered for the nursing facility, had the jury accepted the plaintiff
‘s description of the facts, the result might have been liability for the nursing
facility on the basis of respondeat superior.
Standard of Care
The standard of care describes what conduct is expected of an individual in a
given situation. The general standard of acceptable care is based on what a
reasonably prudent person would do or not do acting under the same or
similar circumstances. The reasonably prudent person doctrine describes a
hypothetical person who is put forward as the community ideal of what would
be considered reasonable behavior. One’s age, sex, physical condition,
education, training, profession, knowledge, mental capacity, and requirements
imposed by law determine the reasonableness of conduct. Deviation from the
standard of care constitutes negligence if it can be shown that the resulting
damages are caused by the breach of one’s duty to care.
The courts often rely on the testimony of an expert witness when determining
the standard of care required of a health professional in the same or similar
communities. Expert testimony is necessary when the jury is not qualified to
determine what a reasonably prudent professional’s standard of care should
be in a given situation. Most states hold those with special skills (e.g.,
physicians, nurse practitioners, physician assistants) to a higher standard of
care, which is reasonable in light of their education and training. A registered
nurse, for example, has the duty to exercise that degree of skill, care, and
knowledge ordinarily possessed and exercised by other nurses. If a patient’s
injury is the result of a physician’s negligent act, the standard of care required
would be that degree of skill, care, and knowledge ordinarily possessed and
exercised in the specialty the physician is practicing. In addition, an
organization’s policies and procedures, regulatory requirements, and
accreditation standards (e.g., The Joint Commission) can be used to help
establish the standard of care required.
Duty Set by Statute
Various state statutes can be used in establishing the duty to care. California
Code of Regulations, Title 22, section 70217 reads in part:
(a) . . . only registered nurses shall be assigned to Intensive Care Newborn
Nursery Service Units, which specifically require one registered nurse to
two or fewer infants. In the Emergency Department, only registered nurses
shall be assigned to triage patients and only registered nurses shall be
assigned to critical trauma patients.
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(1) The licensed nurse-to-patient ratio in a critical care unit shall be 1:2 or
fewer at all times. “Critical care unit” means a nursing unit of a general
acute care hospital which provides one of the following services: an
intensive care service, a burn center, a coronary care service, an acute
respiratory service, or an intensive care newborn nursery service. In the
intensive care newborn nursery service, the ratio shall be 1 registered
nurse: 2 or fewer patients at all times.
(2) The surgical service operating room shall have at least one registered
nurse assigned to the duties of the circulating nurse and a minimum of one
additional person serving as scrub assistant for each patient-occupied
operating room. The scrub assistant may be a licensed nurse, an operating
room technician, or other person who has demonstrated current
competence to the hospital as a scrub assistant, but shall not be a
physician or other licensed health professional who is assisting in the
performance of surgery.
(3) The licensed nurse-to-patient ratio in a labor and delivery suite of the
perinatal service shall be 1:2 or fewer active labor patients at all times.
When a licensed nurse is caring for antepartum patients who are not in
active labor, the licensed nurse-to-patient ratio shall be 1:4 or fewer at all
times.
(4) The licensed nurse-to-patient ratio in a postpartum area of the perinatal
service shall be 1:4 mother-baby couplets or fewer at all times. In the event
of multiple births, the total number of mothers plus infants assigned to a
single licensed nurse shall never exceed eight. For postpartum areas in
which the licensed nurse’s assignment consists of mothers only, the
licensed nurse-to-patient ratio shall be 1:6 or fewer at all times.
(5) The licensed nurse-to-patient ratio in a combined
Labor/Delivery/Postpartum area of the perinatal service shall be 1:3 or
fewer at all times the licensed nurse is caring for a patient combination of
one woman in active labor and a postpartum mother and infant. The
licensed nurse-to-patient ratio for nurses caring for women in active labor
only, antepartum patients who are not in active labor only, postpartum
women only, or mother-baby couplets only, shall be the same ratios as
stated in subsections (3) and (4) above for those categories of patients.
(6) The licensed nurse-to-patient ratio in a pediatric service unit shall be
1:4 or fewer at all times.
(7) The licensed nurse-to-patient ratio in a postanesthesia recovery unit of
the anesthesia service shall be 1:2 or fewer at all times, regardless of the
type of anesthesia the patient received.
(8) In a hospital providing basic emergency medical services or
comprehensive emergency medical services, the licensed nurse-to-patient
ratio in an ED shall be 1:4 or fewer at all times that patients are receiving
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treatment. There shall be no fewer than two licensed nurses physically
present in the ED when a patient is present.
As in Hastings v. Baton Rouge Hospital, some duties are created by statute.
As noted earlier, a Louisiana statute imposes a duty on licensed hospitals to
make emergency services available to all persons residing in the state
regardless of insurance coverage or economic status. Many such standards
are created by administrative agencies under the provisions of a statute. To
establish liability based on a defendant’s failure to follow the standard of care
required by statute, the following elements must be present:
1. The defendant must have been within the specified class of persons
outlined in the statute.
2. The plaintiff must have been injured in a way that the statute was
designed to prevent.
3. The plaintiff must show that the injury would not have occurred if the
statute had not been violated.
Duty Set by Policies and Procedures
The standard of care that employees and agents of a healthcare entity must
follow can be established through the healthcare organization’s internal
policies, procedures, rules, and regulations. The courts generally hold that
such internal operational standards are indicative of, for example, a hospital’s
expectations of the proper procedures to be followed in rendering patient care
and, hence, create a duty to adhere to those standards. Thus, if an employee
fails to adhere to a hospital’s written standards of care and a patient is injured,
the employee who violates those standards can be considered negligent if the
patient is injured as a result of that violation.
Ethics and the Standard of Care
The standard of care required by a caregiver can in part be influenced by the
principles of ethics that apply to the caregiver’s profession. For example, a
decision concerning termination of resuscitation efforts is an area where 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.
Community Versus National Standard of Care
The courts have been moving away from reliance on a community standard
and applying an industry or national standard. This trend has developed as a
result of the more reasonable belief that the standard of care should not vary
with the locale where an individual receives care. It is unreasonable for any
one healthcare facility and/or healthcare professional to set the standard
simply because there is no local basis for comparison. Geographic proximity
rules have increasingly given way to a national standard, with the standard in
the professional’s general locality becoming a factor in determining whether
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the professional has exercised that degree of care expected of the average
practitioner in the class to which he or she belongs.
The ever-evolving advances in medicine and mass communications, the
availability of medical specialists, the development of continuing education
programs, and the broadening scope of government regulations continue to
raise the standard of care required of healthcare professionals and
organizations. As a result, many courts have adopted the view that the
practice of medicine should be national in scope. In Dickinson v. Mailliard, the
court stated:
Hospitals must now be licensed and accredited. They are subject to
statutory regulation. In order to obtain approval they must meet certain
standard requirements. . . . It is no longer justifiable, if indeed it ever was,
to limit a hospital’s liability to that degree of care which is customarily
practiced in its own community. . . . [M]any communities have only one
hospital. Adherence to such a rule, then, means the hospital whose
conduct is assailed, is to be measured only by standards which it has set
for itself.
The Court of Appeals of Maryland, in Shilkret v. Annapolis Emergency
Hospital Association, stated:
[A] hospital is required to use that degree of care and skill which is
expected of a reasonably competent hospital in the same or similar
circumstances. As in cases brought against physicians, advances in the
profession, availability of special facilities and specialists, together with all
other relevant considerations, are to be taken into account.
Evidence of the standard of care applicable to professional activities may be
found in a variety of documents, such as regulations of government agencies
(e.g., state licensure laws) and standards established by private organizations,
such as The Joint Commission. Although the courts tend to prefer a broader
standard of care, the community standard can be extremely important in any
given situation.
Assume for a moment that the question is whether a doctor in a remote
area of Alaska has placed patients at an unnecessarily high risk by
receiving telephone inquiries from nurses in Eskimo villages at even more
remote areas and attempting to prescribe by phone. Clearly, such conduct
would violate the standard of care in San Francisco and, in San Francisco,
would place his patients in an “unnecessarily” high-risk situation. For the
doctor in Alaska, on the other hand, this method of consultation may be the
only possible one, and thus not at all unnecessary or a gross and flagrant
violation.
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Hospital Must Meet Nationwide Standard
The parents in Wickliffe v. Sunrise Hospital sued the hospital for the
wrongful death of their teenage daughter, who suffered respiratory arrest while
recovering from surgery. The Nevada Supreme Court held that the level of
care to which the hospital must conform is a nationwide standard. The
hospital’s level of care is no longer subject to narrow geographic limitations
under the so-called locality rule; rather, the hospital must meet a nationwide
standard.
Furthermore, the Georgia Court of Appeals in Hodges v. Effingham held that
application of the locality rule was erroneous in an action against the hospital.
The alleged failure of nurses to take an accurate medical history of the
patient’s serious condition and convey the information to the physician drew
into question the professional judgment of the nurses. The jury should have
been instructed as to the general standard of nursing required.
There are no degrees of care in fixing responsibility for negligence, but the
standard is always that care which a reasonably prudent person should
use under like circumstances. The duty to exercise reasonable care is a
standard designed to protect a society’s members from unreasonable
exposure to potentially injurious hazards; negligence is conduct that falls
short of the reasonable care standard. Perfection of conduct is humanly
impossible; however, and the law does not exact an unreasonable amount
of care from anyone.
Professionals Held to a Higher Standard
Most states hold those with special skills to a standard of care that is
reasonable in light of their special abilities and knowledge. The plaintiff, for
example in Kowal v. Deer Park Fire District submitted affidavits from two
doctors who stated that, to a reasonable degree of medical certainty, the death
of the plaintiff’s decedent “was caused by severe and extensive cerebral
anoxia caused by . . . incorrect intubation,” that the incorrect intubation of the
decedent constituted medical malpractice. The failure to recognize that the
patient’s condition constituted a gross departure from good and accepted
practice of what is a commonplace medical technique. Assuming that the
deposition testimony of the defendants established prima facie evidence that
they were not grossly negligent, the sworn opinion of the plaintiff’s experts
established that there were issues of fact that precluded the granting of
summary judgment.
Specialists, in particular, are held to a higher standard of care than
nonspecialists. 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
geographic area in which he or she practices. Rather, his or her knowledge is
a specialty; a person specializes to keep abreast. Any other standard for a
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specialist would negate the fundamental expectations and purpose of a
specialty.
Expert Testimony to Establish Required Standard
Traditionally, in determining how a reasonably prudent person should perform
in a given situation, the courts rely on the testimony of an expert witness as to
the standard of care required in the same or similar communities.
Locality Cannot Be Limited to County Lines
The plaintiff’s expert witness in Stogsdill v. Manor Convalescent Home, Inc.,
and Hiatt, MD, who practiced about 12 miles from the convalescent home
where the defendant physician treated the plaintiff, was found competent to
testify. The defendant objected, stating the expert never practiced in the
county where the malpractice occurred. The court overruled this objection on
the grounds that locality cannot be construed so narrowly as to be determined
by county lines. Expert testimony like that in Stogsdil is necessary when a jury
is not trained or qualified to determine what the reasonably prudent
professional’s standard of care would be under similar circumstances.
Breach of Duty
Once a duty to care has been established, the plaintiff must demonstrate that
the defendant breached that duty by failing to comply with the accepted
standard of care. Breach of duty is the failure to conform to or the departure
from a required duty of care owed to a person. The obligation to perform
according to a standard of care can encompass either performing or failing to
perform a particular act.
Breach of duty is illustrated in FIGURE 3-4, where the IV admixture room
pharmacist checking the work of a pharmacy technician failed to follow up on
his concern as to whether or not the medication in the intravenous (IV) bag
had been diluted in the correct dosage. Hospital policies and procedures often
provide that when there are questions regarding an order, the pharmacy
assistant must seek verification from the pharmacist when a medication order
raises concern as to the medication ordered, dosage, and/or route to be
administered (e.g., injection, IV). In this instance, failure to follow up
established a breach of duty.
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FIGURE 3-4 Breach of duty.
© Minerva Studio/Shutterstock, Inc.
Hastings Case: Breach of Duty
The court in Hastings v. Baton Rouge Hospital, which was discussed earlier,
found there was a breach of duty when the patient did not receive adequate
care. Hospital regulations provided that when a physician cannot be reached
or refuses a call, the chief of service must be notified so that another physician
can be obtained. This was not done. A plaintiff need not prove that the patient
would have survived if proper treatment had been administered, only that the
patient would have had a chance of survival. As a result of Dr. Gerdes’s failure
to make arrangements for another physician and Dr. McCool’s failure to
perform the necessary surgery, the patient had no chance of survival. The
duty to provide for appropriate care under the circumstances was breached.
Failure to Provide a Safe Environment
In Dunahoo v. Brooks, the nursing facility was found to have breached its
duty when a patient tripped over an obviously ill-placed light cord. The court
stated that because the defendant nursing facility operator had been aware of
the 94-year-old plaintiff’s infirmities and had agreed to provide her nursing
care, the nursing facility assumed an obligation to exercise care
commensurate with her physical condition. While the plaintiff was getting out
of bed, she tripped and fell over a light cord that was loose on the floor in an
area that the defendant knew the plaintiff frequently used. The cord was
plugged into a socket on the floor 5 inches from the baseboard. The court was
impressed with the ease with which the situation could have been corrected,
noting that the cord could have been fastened down with a few nails and the
outlet placed on the baseboard instead of nearly in the middle of the floor.
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Responsibility to Protect Patient
The nursing facility was found negligent in Booty v. Kentwood Manor Nursing
Home, Inc., when a 90-year-old resident wandered outside the facility, fell,
and suffered a hip fracture. The resident’s physical condition deteriorated, and
he eventually died. The staff was aware of the resident’s confusion and
tendency to stray. The court found that the facility was responsible for taking
reasonable steps to prevent injury to a mentally confused and physically
fragile resident. The facility’s alarm system might have alerted the staff of
unauthorized resident departures, but it had been deactivated, and the doors
were propped open for the convenience of the staff. The record demonstrated
that inadequate supervision was the cause of resident’s departure and that he
most likely would not have suffered injury but for the nursing facility’s breach of
duty owed to the resident.
Injury
Injury includes physical harm, pain, suffering, and loss of income or reputation.
A defendant may be negligent and still not incur liability if no injury or actual
damages result to the plaintiff. Without harm or injury, there is no liability. The
mere occurrence of an injury “does not establish negligence for which the law
imposes liability, because the injury may be the result of an unavoidable
accident, or an act of God, or some cause so remote to the person sought to
be held liable for negligence that he cannot be charged with responsibility for
the injury.”
FIGURE 3-5 portrays the administration of an incorrect dose of an IV
medication that had been improperly diluted in the hospital’s pharmacy, which
led to the injury and ultimate death of an infant in General Hospital’s nursery.
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FIGURE 3-5 Injury.
© Paul Hakimata Photography/Shutterstock
Hastings Case: Injury
Hastings went into cardiac arrest. An attempt to revive him was futile and the
patient died after having been moved back to the ED. The patient virtually bled
to death, thus establishing the third element required to establish proof that a
negligent act had been committed.
Failure to Render Care
Injury was obvious in Lucas v. HCMF Corp., where the patient had been
transferred to a nursing facility following hospitalization for several ailments,
including early decubitus ulcers. The resident was returned to the hospital
days later. “At that time the ulcer on her hip had become three large ulcers
that reached to the bone and tunneled through the skin to meet one another.
The ulcer on her buttocks had grown from one inch in diameter to eight inches
in diameter and extended to the bone. Additional ulcers had developed on
each of her ribs, on her left arm and wrist, and on the left side of her face.”
The standard of care in preventing and treating decubitus ulcers required that
the resident be mobilized and turned every 2 hours to prevent deterioration of
tissue. The treatment records reflected that the resident was not turned at all
from September 22 through October 1, nor was she turned on October 4, 7, or
12. Failure to periodically turn the resident and move her to a chair had
caused the deterioration in her condition.
Multiple Punctures in Starting Central Line
In the medical malpractice case of Goodwin v. Kufoy, the internist failed to
successfully start a central line in order for the patient to receive her
prescribed medication intravenously. During the attempts to start the central
line, the internist made an indeterminate number of puncture wounds at four
different sites on the patient’s body. The patient alleged that she experienced
physical pain and suffering as a result of the multiple puncture wounds. Her
pain, however, was managed successfully with medication, and no further
treatment was sought.
The patient filed a lawsuit against the internist, and a medical review panel
was formed. The medical review panel’s opinion found that the patient failed to
show that the treating internist had breached the standard of care.
The patient then brought her case to trial in district court. The trial court found
that the patient failed to establish the applicable standard of care, failed to
prove that the internist had breached any standard of care, and failed to prove
that she suffered any damages as a result of the unsuccessful procedure.
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The patient appealed, contending that the trial court erred in finding she failed
to establish the standard of care. The plaintiff claimed the internist failed to
obtain a consult from a specialist, after multiple puncture wounds to start a
central line. The State of Louisiana Court of Appeal, 3rd Circuit, agreed that
the patient had established the standard of care. However, the plaintiff did not
prove that she suffered any damages as a result of the defendant’s failed
attempts to start a central line.
Causation
The element of causation requires that there be a reasonable, close, and
causal connection or relationship between the defendant’s negligent conduct
and the resulting damages. In other words, the defendant’s negligence must
be a substantial factor causing the plaintiff’s injury. Proximate cause is a term
that refers to the relationship between a breach of duty and the resulting injury.
The breach of duty must be the proximate/direct cause of the resulting injury.
The mere departure from a proper and recognized procedure is not sufficient
to enable a patient to recover damages unless the plaintiff can show that the
departure was unreasonable and the proximate cause of the patient’s injuries.
The courts generally apply the but-for rule to determine if the injury is directly
the result of a defendant’s act or omission of an act. A finding that an injury
would not have occurred but for a defendant’s act establishes that the
particular act or omission is the proximate cause of the harm. If an injury would
have occurred regardless of a defendant’s negligent act, liability cannot be
assigned to the defendant. “Thus, in a death case, if a defendant physician, by
action or inaction, has destroyed any substantial possibility of the patient’s
survival, such conduct becomes a proximate cause of the patient’s death. The
law does not require the plaintiff to prove to a certainty that the patient would
have lived had he received more prompt diagnosis and treatment for the
condition causing the death.”
FIGURE 3-6 portrays a defense attorney successfully arguing that the cause
of death of an infant in General Hospital’s nursery was due to the failure of the
pharmacist to properly verify that the IV medication had been properly diluted
and labeled by the pharmacy technician in the hospital’s pharmacy. The IV
solution, containing the medication, was delivered to the nursery, where the
nurse checked the label, unaware that the medication left the pharmacy
mislabeled and improperly diluted, she administered it to the infant, who
subsequently died. Those actions combined to establish the proximate cause
of the injury, the fourth element of negligence—causation.
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FIGURE 3-6 Causation determined.
© Junial Enterprises/Shutterstock
Hastings Case: Causation
Causation in the Hastings v. Baton Rouge Hospital, discussed earlier, was
well established. In the ordinary course of events, Hastings would not have
bled to death in a hospital ED over a 2-hour period without some surgical
intervention to save his life. “As a result of Dr. Gerdes’s failure to obtain
another surgeon and Dr. McCool’s failure to operate, Cedric had no chance of
living. Requiring his survivors to prove that surgery would have saved him
would be an unreasonable burden.”
Failure to Alert Patient of Misread Computed Tomography Scan
On November 2, 1995, the plaintiff, in St. Dic v. Brooklyn Hospital Center,
was admitted to the hospital complaining of a severe headache, an inability to
open her eyes, and the absence of feeling in her legs. A computed
tomography (CT) scan was administered, which the defendant conceded was
misread by the staff physician as normal. After discharging the plaintiff from its
care, the defendant’s radiologist reviewed the CT and concluded it was, in
fact, not normal. The defendant did not contact the plaintiff to alert the
defendant about the revised finding. The hospital conceded that its employee
misread the CT. Failure to alert the plaintiff and the misreading were
departures from accepted medical practice, the jury properly found that those
conceded departures were the proximate causes of the plaintiff’s injury. “The
principal issue presented on this appeal is whether those conceded departures
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were the proximate causes of the plaintiff’s injury. Contrary to the defendant’s
contention, the evidence adduced at trial was legally sufficient to support the
jury’s verdict on causation.”
Failure to Refer
In Robinson v. Group Health Association, Inc., the District of Columbia Court
of Appeals held that there was a genuine issue of material fact as to whether
the failure of a group health provider to treat a patient’s diabetes aggressively
resulted in the amputation of his leg below the knee. The testimony of the
plaintiff’s expert, as it related to the issue of proximate cause, was sufficient to
allow the case to go to the jury. According to the expert witness, the failure of
the provider to refer the patient for vascular evaluation resulted in his below-
the-knee amputation. The expert testified to a reasonable degree of medical
certainty, which he equated to a greater than 50% chance, that if there had
been an early vascular consult, followed by an angioplasty and perhaps a
partial foot amputation, a below-the-knee amputation could have been
avoided. Although the provider presented contrary testimony, the plaintiff’s
expert testimony was found sufficient to permit a reasonable juror to find that
there was a direct and substantial causal relationship between the provider’s
breach of the standard of care and the patient’s injuries.
The primary wrong upon which a cause of action for negligence is based
consists of the breach of a duty on the part of one person to protect another
against injury, the proximate result of which is an injury to the person to whom
the duty is owed. These elements of duty, breach, and injury are essentials of
actionable negligence, and in fact, most judicial definitions of the term
“negligence” or “actionable negligence” are couched in those terms. In the
absence of any one of them, no cause of action for negligence will lie.
Causation Not Established: Case Dismissed
Mrs. Stewart was admitted to the hospital with inflammation of the gallbladder,
and the surgeon began antibiotics. Stewart, however, died early the next
morning. The county medical examiner stated that the cause of death was a
result of a blood-borne infection. The plaintiff’s nurse provided expert
testimony in a deposition that a registered nurse at the hospital failed to meet
the nursing standard of care in treating the patient. A chart was produced
identifying 11 instances in which the hospital nurse allegedly failed to meet the
nursing standard of care, including failure to assess the need for oxygen
therapy, failure to note abnormal breath sounds and severity or location of
pain, failure to assess urinary retention, and failure to assess vital signs and
nausea. The plaintiff, Stewart’s husband, contended that the evidence
established that the defendants violated the nursing standard of care and that
their failures were the proximate cause of his wife’s death. The defendants
moved for dismissal and the superior court granted the motion. The Court of
Appeals of Washington, Division Three, in Stewart v. Newbold, found that
the plaintiff—Stewart’s husband—failed to establish any genuine issue on the
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question of proximate causation. The trial court properly dismissed the claims
against the nurse and hospital.
Eliminating Causes
Another way to establish the causal relationship between the particular
conduct of a defendant and a plaintiff’s injury is through the process of
eliminating causes other than the defendant’s conduct. As an example, in
Shegog v. Zabrecky, Mr. Pereyra sought treatment for back pain from Dr.
Zabrecky, a chiropractor at the Life Extension Center, in January 1987.
Zabrecky ordered X-rays. The X-rays revealed that Pereyra was suffering from
a fractured vertebra caused by a malignant tumor. Pereyra was referred to a
surgeon, who performed two surgical procedures to remove the tumor.
Pereyra underwent a series of radiation treatments, which were supervised by
Dr. Usas. A CT scan revealed that the cancer had spread to his lungs. Dr.
Usas and other consulting physicians recommended that chemotherapy be
considered following the course of radiation treatments. Pereyra was advised
that his chance of survival following chemotherapy was 50% or better. During
the summer of 1987, Pereyra consulted with a number of physicians as to the
best course of treatment. Pereyra continued to see Zabrecky throughout the
summer and fall of 1987. Zabrecky recommended that Pereyra reject the
chemotherapy treatments and undergo a course of treatment with neytumorin
and neythymin (two compounds manufactured in Germany). The Food and
Drug Administration had not approved either drug. Pereyra agreed to undergo
the treatment. Zabrecky performed an initial enzyme study prior to treatment,
but did not perform further tests after the course of treatment began. During
the course of treatment, the cancer continued to spread. Additional radiation
treatments were given. Pereyra’s condition worsened, and he was admitted to
the hospital. The physicians at the hospital had not been aware that Pereyra
was injecting himself with drugs given to him by Zabrecky. Upon urging from
his wife, Pereyra revealed this information to the physicians at the hospital.
Pereyra died on December 17, 1987, approximately 6 weeks after he had
begun treatment with neytumorin and neythymin. An autopsy revealed that
Pereyra had died from necrosis of the liver caused by a toxic reaction to a
foreign substance. Pereyra was taking only the drugs neytumorin and
neythymin between July 1987 and his death. No cancer was found in the liver.
FAILURE TO ADMINISTER PROPER NOURISHMENT
Citation: Caruso v. Pine Manor Nursing Ctr., 538 N.E.2d 722 (Ill. App. Ct.
1989)
Facts
In Illinois, a nursing facility by statute has a duty to provide its residents with
proper nutrition. Under the Nursing Home Care Reform Act, the owner and
licensee of a nursing home are liable to a resident for any intentional or
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negligent act or omission of their agents or employees that injures a
resident. The act defines neglect as a failure of a facility to provide adequate
medical or personal care or maintenance, when failure results in physical or
mental injury to a resident or in the deterioration of the resident’s condition.
Personal care and maintenance include providing food, water, and
assistance with meals necessary to sustain a healthy life. The nursing
facility in this case maintained no records of the resident’s fluid intake or
output. A nurse testified that such a record is a required nursing facility
procedure that should have been followed for a person in the resident’s
condition, but was not.
The resident’s condition deteriorated after staying 6.5 days at the facility.
Upon leaving the facility and entering a hospital ED, the resident was
diagnosed by the treating physician as suffering from severe dehydration
caused by an inadequate intake of fluids. The nursing facility offered no
alternative explanation for the resident’s dehydrated condition.
The trial court found that the record supported a finding that the resident had
suffered from dehydration as a result of the nursing facility’s negligence. The
defendant appealed the jury verdict.
Issue
Did the resident suffer harm as a result of Pine Manor Nursing Center’s
negligence?
Holding
The Illinois Appellate Court upheld the trial court’s finding that the resident
suffered dehydration due to the nursing facility’s negligence.
Reason
The evidence demonstrated that the proximate cause of the resident’s
dehydration was the nursing facility’s failure to administer proper
nourishment; therefore, the jury reasonably concluded that the nursing
facility’s negligence caused the dehydration.
A lawsuit was filed against the defendants, seeking damages for negligent
treatment. The alleged negligent acts included:
Administering drugs statutorily prohibited for use
Withholding information from treating physicians
Failing to follow patient’s blood work
Advising the patient to use drugs that had expired
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Engaging in the unlicensed practice of medicine
Inducing the patient to forgo appropriate therapy
The jury delivered a verdict for the plaintiff. The defendants appealed, claiming
that the evidence introduced at trial did not support the jury’s finding as to
causation. The appellate court held that Zabrecky’s grossly negligent actions
and the circumstantial evidence introduced supported the jury’s finding of
causation. Zabrecky violated a recognized standard of care by prescribing
statutorily prohibited drugs. No evidence was presented that would have
supported another cause of the patient’s liver failure. Reports from treating
physicians indicate that the plaintiff died of liver failure and not from cancer.
The defendant’s expert testified that necrosis of the liver can be caused by the
injection of foreign substances. He also testified that the normal reaction time
of the human liver to a foreign protein is, on average, 6 weeks.
One of the ways to establish the causal relationship between particular
conduct of a defendant and a plaintiff’s injury is the expert’s deduction, by
the process of eliminating causes other than the conduct, that the conduct
was the cause of injury. . . . The submitted reports indicate that each
physician deduced that the German drugs were the most probable cause
of Pereyra’s liver failure, even without analysis of the drugs.
Foreseeability
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 ordinary prudence and intelligence should have anticipated the
danger to others caused by his or her negligent act. The test for foreseeability
is not what the wrongdoer believed would occur; instead, it is whether the
wrongdoer ought to have reasonably foreseen that the event in question, or
some similar event, would occur. The broad test of negligence is what a
reasonably prudent person would or should normally foresee and would do in
light of this foresight under the circumstances.
Foreseeability involves guarding against that which is probable and likely to
happen, not against that which is only remotely possible. There is no
expectation that a person can guard against events that cannot reasonably be
foreseen or that are so unlikely to occur that they would be disregarded.
When a defendant’s action or actions breach the standard of care and injury is
the result of the breach, the jury must make two determinations. First, was it
foreseeable that harm would occur from the failure to meet the standard of
care? Second, was the carelessness or negligence the proximate or
immediate cause of the harm or injury to the plaintiff?
In Hastings v. Baton Rouge Hospital, it was highly probable that the patient
would die if the bleeding was not stopped. The broad test of negligence is
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what a reasonably prudent person would foresee and would do in the light of
this foresight under the circumstances.
In Haynes v. Hoffman, the plaintiff brought a medical malpractice action
against the defendant physician for his alleged negligence in prescribing a
medication from which the plaintiff suffered an allergic reaction. The trial court
returned a verdict in favor of the defendant, and the plaintiff appealed. The
evidence at trial revealed that the plaintiff had not disclosed her history of
allergies to the physician. The physician testified that, at the time of the
physical examination, the plaintiff denied having any allergies. The plaintiff
was found to have contributed to her injuries by failing to provide her physician
information regarding her known allergies.
The question of foreseeability was an issue in Ferguson v. Dr. McCarthy’s
Rest Home. In this case, the plaintiff, a resident in the defendant’s nursing
facility, suffered from paralysis of the left side of the body but was able to roll
toward the left side in bed. The defendant had knowledge of this ability. A
radiator, which was approximately the same height as the bed, was next to the
plaintiff’s bed. During the night, the plaintiff’s left foot came in contact with the
radiator, and she suffered third-degree burns. The court held that this kind of
accident was foreseeable with respect to a person in the plaintiff’s condition,
particularly because the defendant had knowledge of the plaintiff’s condition.
The defendant should have shielded the radiator or not placed the plaintiff next
to it.
Generally, the issue of foreseeability is for the trial court to decide. A duty to
prevent a wrongful act by a third party will be imposed only where those
wrongful acts can be reasonably anticipated.
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▸ SUMMARY CASE
All the elements necessary to establish negligence were well established in
Niles v. City of San Rafael. On June 26, 1973, at approximately 3:30 PM,
Kelly Niles, a young boy, got into an argument with another boy on a ball field,
and he was hit on the right side of his head. He rode home on his bicycle and
waited for his father, who was to pick him up for the weekend. At
approximately 5:00 PM, his father arrived to pick him up. By the time they
arrived in San Francisco, Kelly appeared to be in a great deal of pain. His
father then decided to take him to Mount Zion Hospital, which was a short
distance away. He arrived at the hospital ED at approximately 5:45 PM. On
admission to the ED, Kelly was taken to a treatment room by a registered
nurse. The nurse obtained a history of the injury and took Kelly’s pulse and
blood pressure. During his stay in the ED, he was irritable, vomited several
times, and complained that his head hurt. An intern who had seen Kelly wrote,
“pale, diaphoretic, and groggy,” on the patient’s chart. Skull X-rays were
ordered and found to be negative except for soft tissue swelling that was not
noted until later. The intern then decided to admit the patient. A second-year
resident was called, and he agreed with the intern’s decision. An admitting
clerk called the intern and indicated that the patient had to be admitted by an
attending physician. The resident went as far as to write “admit” on the chart
and later crossed it out. A pediatrician who was in the ED at the time was
asked to look at Kelly. The pediatrician was also the paid director of the Mount
Zion Pediatric Outpatient Clinic.
Haskins talked to Kelly in the emergency room, but he did not examine
Kelly or look at his chart. Then Haskins talked to Kelly’s father, concluded
he was a responsible person, and told him Kelly could go home. Haskins
advised Niles to watch for dilation of the pupils in Kelly’s eyes, and to be
sure that Kelly could be aroused from sleep. The pediatrician asked Kelly a
few questions and then decided to send him home.
The physician could not recall what instructions he gave the patient’s father,
but he did give the father his business card. The pediatrician could not recall
giving the father a copy of the ED’s head injury instructions, an information
sheet that had been prepared for distribution to patients with head injuries.
The head injury pamphlet described under what circumstances the patient
should be returned to the ED should any of the following signs appear:
1. A large, soft lump on the head
2. Unusual drowsiness (cannot be awakened)
3. Forceful or repeated vomiting
4. A fit or convulsion (jerking or spells)
5. Clumsy walking
6. Bad headache
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7. One pupil larger than the other
Although Kelly exhibited several of these signs while he was in the ED, he was
discharged. Kelly was taken back to his father’s apartment at about 7:00 PM.
A psychiatrist, a friend of Kelly’s father, had stopped by later that evening. He
examined Kelly and noted that one pupil was larger than the other. Because
the pediatrician could not be reached, Kelly was taken back to the ED. A
physician on duty noted an epidural hematoma during his examination and
ordered that a neurosurgeon be called.
Today, Kelly can move only his eyes and neck. A lawsuit against Mount Zion
and the pediatrician for $5 million was instituted. The city of San Rafael and
the public school district also were included in the lawsuit as defendants.
Expert testimony by two neurosurgeons during the trial indicated that the
patient’s chances of recovery would have been very good if he had been
admitted promptly. This testimony placed the proximate cause of the injury
with the hospital. The final judgment was $4 million against the defendants,
$2.5 million for compensatory damages, and another $1.5 million for pain and
suffering.
Case Lessons
Each case presented in this textbook illustrates actual experiences of plaintiffs
and defendants, enabling the reader to apply the lessons learned to real-life
situations. The many lessons in Niles v. City of San Rafael include the
following:
An organization can improve the quality of patient care rendered in the
facility by establishing and adhering to policies, procedures, and
protocols that facilitate the delivery of quality care across all
disciplines.
The provision of quality health care requires collaboration across
disciplines.
A physician must conduct a thorough and responsible examination and
order the appropriate tests for each patient, evaluating the results of
those tests and providing appropriate treatment prior to discharging the
patient.
A patient’s vital signs must be monitored closely and documented in
the medical record.
Corrective measures must be taken when a patient’s medical condition
signals a medical problem.
A complete review of a patient’s medical record must be accomplished
before discharging a patient. Review of the record must include review
of test results, nurses’ notes, residents’ and interns’ notes, and the
notes of any other physician or consultant who may have attended the
patient.
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An erroneous diagnosis leading to the premature dismissal of a case
can result in liability for both the organization and physician.
Collaboration in Tort Reform
Physicians and, increasingly, advanced practice practitioners (e.g., physician
assistants and nurse practitioners) are on the front lines of medicine but often
have been excluded from the decision-making processes that threaten their
autonomy and financial security. A concerted effort must be made to include
them in the process of tort reform. The present system of punishment for all
because of the inadequacies of the few has proven to be costly and far from
effective.
The medical malpractice insurance crisis continues to be a major dilemma for
the healthcare industry. Although there have been many approaches to
resolving the crisis, there appears to be no one magic formula. The solution
most likely will require a variety of efforts, including tort reforms, some of which
have been reviewed earlier here.
THE COURT’S DECISION
The Ohio Court of Appeals held that the delay in providing the plaintiff
treatment fell below the medically acceptable standard of care. The court
was appalled that the physician had characterized his evaluation as a
medical examination or had implied that what he described as a “cursory
breast examination” should be considered a medically sufficient breast
examination. It seemed incredible to the court that a physician would
deliberately choose not to take the additional few minutes or seconds to
thoroughly palpitate the sides of the breasts, which is a standard, minimally
intrusive cancer detection technique. His admission that he merely “pressed”
on the plaintiff’s breasts, coupled with the additional admission that such
acts would not necessarily disclose lumps in the breasts, constituted poor
medical care.
It was probable that an earlier procedure would have safely and reliably
conserved a large part of the plaintiff’s right breast. Through inexcusable
delays, the plaintiff lost this option and, instead, was medically required to
have the entire breast removed. The court concluded that the defendant’s
negligence was the sole and proximate cause of the plaintiff’s losses.42
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▸ CHAPTER REVIEW
1. A tort is a civil wrong that is committed against a person or property for
which a court provides a remedy in the form of an action for damages.
2. Negligence is a tort—a civil or personal wrong that is the unintentional
commission or omission of an act that a reasonably prudent person
would or would not do under the same or similar circumstances.
3. Forms of negligence
Malfeasance: the execution of an unlawful or improper act.
Misfeasance: the improper performance of an act that results in
injury to another.
Nonfeasance: a failure to act when there is a duty to do so.
4. Degrees of negligence
Ordinary negligence: the failure to do what a reasonably
prudent person would do or doing what a reasonably prudent
person would not do under the circumstances of the act or
omission in question.
Gross negligence: the intentional or wanton omission of care
that should be provided or the performance of an improper act.
5. Elements of negligence
Duty to care: the legal obligation or obligatory conduct owed by
one person to another. The standard of care is the conduct
expected of an individual in a given situation.
Breach of duty: the failure to meet a prevailing standard of
care.
Injury: without proof of harm or injury, a defendant cannot be
found liable for negligence.
Causation: the defendant’s negligence must be a substantial
factor in having caused injury.
Foreseeability: the reasonable anticipation that harm or
injury will result from an act or a failure to act.
Test for foreseeability: whether one should have
reasonably anticipated that the event in question or a
similar event would occur.
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▸ REVIEW QUESTIONS
1. Describe the objectives of tort law.
2. Explain the difference between negligence and malpractice.
3. Describe the elements of a negligence that the plaintiff must establish
in a negligence suit.
4. Describe the importance of causation in establishing liability in a
negligence suit.
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▸ NOTES
1. Tomcik v. Ohio Dep’t of Rehabilitation & Correction, 62 Ohio Misc.2d 324, 598
N.E.2d 900 (Ohio Ct. App. 1991).
2. Id. at 904.
3. Clare Kitchen, “You’re Taking Out Wrong Kidney, Surgeon Was Told,”
http://www.dailymail.co.uk/health/article-123005/Youre-taking-wrong-
kidney-surgeon-told.html#ixzz4sTYYdGM2
4. YourLawyer.com, “Wrong Breast and Wrong Kidney Removed as a Result of
Two Inexcusable Surgical Errors,”
http://www.yourlawyer.com/articles/title/wrong-breast-and-wrong-kidney-
removed-as-a-result-of-two-inexcusable-surgical-errors
5. NYTimes.com, “Doctor Who Cut Off Wrong Leg Is Defended by Colleagues,”
The New York Times, September 17, 1995.
http://www.nytimes.com/1995/09/17/us/doctor-who-cut-off-wrong-leg-is-
defended-by-colleagues.html
6. 498 So. 2d 713 (La. Ct. App. 1986).
7. 11 A.2d 132 (N.Y. App. Div. 1960).
8. 787 S.W.2d 494 (Tex. Ct. App. 1990).
9. Id. at 496.
10. 233 Miss. 654, 103 So. 2d 365 (1958).
11. 175 N.W.2d 588, 596 (Iowa 1970).
12. 349 A.2d 245 (Md. 1975).
13. Greene v. Bowen, 639 F. Supp. 544, 561 (E.D. Cal. 1986).
14. 706 P.2d 1383 (Nev. 1985).
15. 355 S.E.2d 104 (Ga. Ct. App. 1987).
16. 57A AM. JUR. 2D Torts § 26 (1989).
17. No. 2004-00863 (N.Y. App. Div. 2004).
18. 343 N.E.3d 589 (Ill. 1976).
19. 498 So. 2d 713 (La. Ct. App. 1986).
20. 128 So. 2d 485 (Ala. 1961).
21. 483 So. 2d 634 (La. Ct. App. 1985).
22. 57A AM. JUR. 2D Torts § 78 (1989).
23. 384 S.E.2d 92 (Va. 1989).
24. Id.
25. 974 So. 2d 815 (La. App. 2008).
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http://www.dailymail.co.uk/health/article-123005/Youre-taking-wrong-kidney-surgeon-told.html#ixzz4sTYYdGM2

http://YourLawyer.com

Wrong Breast and Wrong Kidney Removed as a Result of Two Inexcusable Surgical Errors

http://NYTimes.com

http://www.nytimes.com/1995/09/17/us/doctor-who-cut-off-wrong-leg-is-defended-by-colleagues.html

26. Brown v. Koulizakis, 229 Va. 524, 331 SE.2d 440 at 446 (1985).
27. 498 So. 2d 713 (La. Ct. App. 1986).
28. Id at 71.
29. St. Dic v. Brooklyn Hospital Center, 12 A.D. 3rd 661 (2004).
30. Id. at 662.
31. 691 A.2d 1147 (D.C. App. 1997).
32. 57A AM. JUR. 2D Torts § 80 (1989).
33. 112 Wash. App. 1027 (2002).
34. 654 A.2d 771 (Conn. App. 1995).
35. Id. at 777.
36. Clark v. Wagoner, 452 S.W.2d 437, 440 (Tex. 1970).
37. 57A AM. JUR. 2D Torts § 134 (1989).
38. 296 S.E.2d 216 (Ga. Ct. App. 1982).
39. 142 N.E.2d 337 (Mass. 1957).
40. 116 Cal. Rptr. 733 (Cal. Ct. App. 1974).
41. Id.
42. Supra, Tomcik v. Ohio Dep’t of Rehabilitation & Correction.
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CHAPTER 4
Intentional Torts
IT’S YOUR GAVEL…
FALSE ARREST
In Desai v. SSM Healthcare, Dr. Desai was walking across a hospital
parking lot, a shortcut to the St. Louis University Medical School’s Institute of
Molecular Virology, where he worked as part of his graduate studies. Two
security guards, Mr. Mealey and Mr. Windam, stopped Desai and asked him
for identification. Desai said that he was a doctor and that he did not have
his identification with him. Following an argument, the two security guards
grabbed Desai’s arms and Windam slammed Desai’s head against the trunk
of a car. After handcuffing him, the security guards escorted Desai back to
the security office where they were joined by the security guards’ supervisor.
The handcuffs were eventually removed after the security guards received
verification that Desai was affiliated with the institute and confirmation from a
nurse supervisor that he was a physician. Shortly thereafter, the university
campus police arrived. One of the officers asked Desai to apologize to
Mealey. Desai refused and said that he wanted the St. Louis city police
called, because he wanted to file an official complaint of assault. At the
request of the security guards, Desai was handcuffed again and arrested by
the St. Louis police for trespassing. The security guards later admitted that
they had Desai arrested to avoid trouble for themselves. Desai was not
released from jail until noon the following day. While in jail, he suffered
headaches and seizures. Desai brought suit against the hospital and
security guards for false imprisonment, battery, and malicious prosecution.
The defendants moved to have the malicious prosecution count dismissed,
and the motion was granted. The jury had returned a verdict totaling
$75,000 in damages for the false imprisonment claim and found in favor of
the defendants on the battery claim. The trial court sustained the
defendants’ motions for judgment notwithstanding the verdict, and the
plaintiff appealed. Did the plaintiff meet his burden of establishing his case
by substantial evidence?
WHAT IS YOUR VERDICT?
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▸ LEARNING OBJECTIVES
The reader, upon completion of this chapter, will be able to:
Define intentional torts and describe the differences between
intentional torts and negligence.
Identify various intentional torts and their application in the healthcare
setting.
Explain the theories a plaintiff can use in pursuing a products liability
case against a manufacturer.
Describe various theories a manufacturer may use when defending
itself against a products liability case.
An intentional tort is one that is committed deliberately. Proof of intent is based
on the premise that the defendant intended the harmful consequences of his
or her behavior. An individual’s reason to cause harm is irrelevant and does
not protect him or her from responsibility for the damages suffered as the
result of an intentional act.
There are two main differences between intentional torts and negligence. The
first is intent is present in intentional but not in negligent wrongs. For a tort to
be considered intentional, the act must be committed intentionally, and the
wrongdoer must realize to a substantial certainty that harm would result. The
second difference is less obvious. Although a negligent wrong may simply be
the failure to act when there is a legal duty to act, an intentional wrong always
involves a willful act that violates another’s interests. Intentional wrongs
include assault and battery, false imprisonment, defamation of character,
fraud, invasion of privacy, and infliction of emotional distress (FIGURE 4-1).
FIGURE 4-1 Intentional torts.
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▸ ASSAULT AND BATTERY
It has long been recognized by law that a person possesses a right to be free
from aggression and the threat of actual aggression against one’s person. The
right to expect others to respect the integrity of one’s body has roots in both
common and statutory law. The distinguishing feature between assault and
battery is that assault effectuates an infringement on the mental security or
tranquility of another, whereas battery constitutes a violation of another’s
physical integrity.
Caregivers must be aware of the potential for assault and battery complaints
that can arise when caring for patients. In addition, they have to be alert to
potential problems that can occur between patients (e.g., problems caused by
smoking; cultural, racial or religious bias; emotional conflicts). A healthcare
facility has a particular duty to closely supervise those patients whose mental
conditions make it probable that they will injure themselves or others.
The defendant in United States v. Moore, an inmate at the Federal Medical
Center in Rochester, had tested positive for the HIV antibody. He was
convicted later by a jury for assault and battery for assaulting two federal
correctional officers with his mouth and teeth. The defendant motioned the
U.S. District Court for a judgment of acquittal and for a new trial. Evidence at
trial showed that AIDS could be transmitted through body fluids such as blood
and semen. The defendant had been informed that he had both the AIDS virus
and the hepatitis antibody and that he potentially could transmit the diseases
to other persons. He bit one officer on the leg twice, leaving a 4-inch saliva
stain. He bit the second officer, leaving a mark that was visible 5 months later
at trial. Expert testimony at trial indicated that any human bite can cause a
serious infection and that blood is sometimes present in the mouth, particularly
if an individual has ill-fitting teeth or gum problems. In the defendant’s motion
for a new trial, he claimed that the court erred in denying his requested Jury
Instruction 12, which would have prohibited the officers’ testimony as to
medical instructions they were given to avoid infecting their families from being
entered into evidence. The evidence was considered probative of the
dangerousness of the bites inflicted by the defendant, and the probative value
outweighed any prejudicial effect. The defendant’s motions for a judgment of
acquittal and a new trial were denied.
Assault
An assault is a deliberate threat coupled with the apparent present ability to do
physical harm to another. No actual contact or damage is necessary. It is the
deliberate threat or attempt to injure another or the attempt by one to make
bodily contact with another without his or her consent. To commit the tort of
assault, two conditions must exist. First, the person attempting to touch
another unlawfully must possess the apparent present ability to commit the
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battery. Second, the person threatened must be aware of or have actual
knowledge of an immediate threat of a battery and must fear it.
Battery
A battery is the intentional touching of another’s person in a socially
impermissible manner, without that person’s consent. It is intentional conduct
that violates the physical security of another. An act that otherwise would be
considered to be a battery may be permissible if proper consent has been
given or if it is in defense of oneself or of a third party. The receiver of the
battery does not have to be aware that a battery has been committed (e.g., a
patient who is unconscious and has surgery performed on him or her without
consent, either expressed or implied, is the object of a battery). The unwanted
touching may give rise to a cause of action for any injuries brought about by
the touching. No actual damages need be shown to impose liability.
The law provides a remedy if consent to a touching has not been obtained or if
the act goes beyond the consent given. In the healthcare context, the principle
of law concerning battery and the requirement of consent to medical and
surgical procedures are critically important. Liability of organizations and
healthcare professionals for acts of battery is most common in situations
involving lack of patient consent to medical and surgical procedures.
It is of no legal importance that a procedure constituting a battery has
improved a patient’s health. If the patient did not consent to the touching, the
patient may be entitled to such damages as can be proved to have resulted
from commission of the battery.
Unauthorized Surgery
In Perna v. Pirozzi, the New Jersey Supreme Court held that a patient who
consents to surgery by one surgeon and is actually operated on by another
has an action for medical malpractice or battery. Proof of unauthorized
invasion of the plaintiff’s person, even if harmless, entitles one to nominal
damages. Patients, when signing informed consents, should be informed
verbally and in the body of the written consent of the possibility of another
physician participating in or conducting the surgical procedure.
Nurse Muffles Patient with Pillow
The registered nurse in Wyatt v. Iowa Dep’t of Human Services sought to
muffle a patient’s screams with a pillow in order to protect another patient, who
suffered from a neurologic condition that rendered the patient highly
susceptible to stimuli such as noise. The nurse was found not to have
committed assault under Iowa’s dependent adult abuse registry because the
nurse did not have the intent necessary to commit abuse. She did not intend to
harm the patient. She only intended to muffle the noise for protection of her
other patient.
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Physician Strikes Nurse
In Peete v. Blackwell, punitive damages in the amount of $10,000 were
awarded to a nurse in her action against a physician for assault and battery.
Evidence showed that the physician struck the assisting nurse on the arm and
cursed at her when he ordered her to turn on the suction. Dr. Peete appealed
the trial court’s decision asserting the evidence presented was insufficient to
show the requisite “insult or other aggravating circumstances” required for an
award of $10,000 in punitive damages. He contended that, even if sufficient
evidence of aggravating circumstances were presented, the actual
assessment of punitive damages was against the weight and preponderance
of the evidence submitted. On appeal, the Supreme Court of Alabama upheld
the judgment of the trial court.
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▸ FALSE IMPRISONMENT
False imprisonment is the unlawful restraint of an individual’s personal liberty
or the unlawful restraint or confinement of an individual. The personal right to
move freely and without hindrance is basic to the legal system. Any intentional
infringement on this right may constitute false imprisonment. Actual physical
force is not necessary to constitute false imprisonment; false imprisonment
may occur when an individual who is physically confined to a given area
reasonably fears detainment or intimidation without legal justification. Both
intimidation and forced detainment may be implied by words, threats, or
gestures. Excessive force used to restrain a patient may produce liability for
both false imprisonment and battery.
To recover for damages for false imprisonment, a plaintiff must (1) be aware of
the confinement and (2) have no reasonable means of escape. Availability of a
reasonable means of escape may bar recovery. To lock a door when another
is reasonably available to pass through is not imprisonment. However, if the
only other door provides a way of escape that is dangerous, the law may
consider it an unreasonable way of escape, and therefore, false imprisonment
may be a cause of action. Whether false imprisonment has taken place will be
a matter for the courts to decide. No actual damage needs to be shown for
liability to be imposed.
Some occasions and circumstances allow for a person’s confinement, such as
when a person presents a danger to self or to others. Criminals are
incarcerated, as are sometimes the mentally ill who may present a danger to
themselves or others. Long-term care residents are sometimes restrained to
prevent falls. Children are retained after school for disciplinary reasons. In
these examples, the right to move about freely has been violated, but the
infringement occurs for reasons that are justifiable under the law. Where legal
justification is absent and an arrest or imprisonment is false, a person denied
free movement is permitted to seek a remedy at law for any resulting injury.
Physically Violent Persons
In Celestine v. United States, the right to move about freely had been
violated; however, the infringement was permissible for reasons justifiable
under the law. In this case, the plaintiff had brought an action alleging battery
and false imprisonment because security guards had placed him in restraints.
The plaintiff-appellant sought psychiatric care at a Veterans Administration
(VA) hospital. He became physically violent while waiting to be seen by a
physician. The VA security guards placed him in restraints until a psychiatrist
could examine him. The U.S. Court of Appeals for the Eighth Circuit held that
the record supported a finding that the hospital was justified in placing the
patient under restraint. Under Missouri law, no false imprisonment or battery
occurred in view of the common law principle that a person believed to be
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mentally ill could be restrained lawfully if such was considered necessary to
prevent immediate injury to that person or others.
Contagious Diseases
Detaining patients without statutory protection can constitute false
imprisonment. State health codes generally provide guidelines describing
under what circumstances a patient may be detained. For example, patients
with certain contagious diseases may be detained. Healthcare organizations
should establish protocols for handling patients who have contracted a
contagious disease. Also, statutes in most states allow persons with mental
illness and intoxicated individuals to be detained if they are found to be
dangerous to themselves or others. Those persons with mental illness,
however, can be restrained only to the degree necessary to prevent them from
harming themselves or others.
Intoxicated Persons
The patient in Davis v. Charter by the Sea was found not entitled to a directed
verdict on a false imprisonment claim. The claim arose from her overnight,
involuntary detention at a hospital. Evidence that the patient was highly
intoxicated, confused, incoherent, and experiencing a low diastolic blood
pressure raised a jury question as to the existence of a medical emergency
authorizing her detention.
Restraints
Restraints generally are used to control behavior when patients are
disoriented or may cause harm to themselves (e.g., suicide, falling,
contaminating wounds, pulling out intravenous lines) or to others. The use of
restraints raises many questions of a patient’s rights in the areas of autonomy,
freedom of movement, and the accompanying health problems that can result
from continued immobility. In general, a patient has a right to be free from any
physical restraints imposed or psychoactive drugs administered for purposes
of discipline or convenience and that are not required to treat a patient’s
medical symptoms.
Although the motivations for using restraints appear sound, there has been a
tendency toward overuse. The fear of litigation over injuries sustained because
of the failure to apply restraints further compounds the problem of overuse. As
a result, regulations governing the use of restraints under the Omnibus Budget
Reconciliation Act of 1987 make it clear that restraints are to be applied as a
last resort rather than as a first option in the control of a patient’s behavior.
Because prescription drugs are sometimes used to restrain behavior, the
regulations represent the first time that prescription drugs must, by law, “be
justified by indications documented in the medical chart.”
To avoid legal problems, healthcare organizations should implement policies
aimed at eliminating or reducing the use of restraints. Programs for the
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effective use of restraints should include the following:
Policies that conform to federal and state guidelines, as well as those
required by accrediting agencies
Policies prescribing that the least restrictive device be used to maintain
the safety of the patient, requiring the periodic review of patients under
restraint, and requiring physician orders for restraints
Procedures for implementing organizational policies (e.g., alternatives
to be followed before resorting to restraints include family counseling to
encourage increased visitations, environmental change, activity
therapies, and patient counseling)
Periodic review of policies and procedures, with revision as necessary
Education and orientation programs for staff
Educational programs for patients and their families
Sound assessment of each patient’s needs
Informed consent from the patient or legal guardian
Periodic patient monitoring to determine the need to continue the use
of restraints
Review of safe practices to prevent patient injury
A mechanism for handling complaints of patients in restraint
Documentation that includes the need for restraints, time-limited orders
(“as needed” [PRN] orders are not acceptable), consents for the
application of restraints, patient monitoring, and reappraisal of the
continuing need for restraints
In Big Town Nursing Home, Inc. v. Newman, the court held that there was
sufficient evidence to support a finding that a 67-year-old male resident had
been falsely imprisoned in a facility against his will. He had attempted to leave
the facility 3 days after he arrived, but was caught by the facility’s employees
and forcibly returned. He was placed in a patient care unit with persons who
were addicted to drugs and alcohol and those who were mentally disturbed.
He asked during the ensuing weeks that he be permitted to leave and
attempted to leave five or six times. Eventually, he was confined to a restraint
chair, his clothes were taken, and he was not permitted to use the telephone.
The actions of the staff were described as being in utter disregard of the
resident’s legal rights. There was no court order for his commitment, and the
agreement for his admission stated that he was not to be kept against his will.
The court stated that the staff acted recklessly, willfully, and maliciously by
unlawfully detaining him.
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▸ DEFAMATION OF CHARACTER
Defamation of character is a communication to someone about another person
that tends to hold that person’s reputation up to scorn and ridicule. To be an
actionable wrong, defamation must be communicated to a third person;
defamatory statements communicated only to the injured party do not
constitute grounds for an action. Slander is the verbal form of defamation and
tends to form prejudices against a person in the eyes of third persons. Libel is
the written form of defamation and can be presented in such forms as signs,
photographs, letters, and cartoons.
Slander
Slanderous lawsuits are rare because of the difficulty in proving defamation,
the small awards, and high legal fees. With slander, the person who brings suit
generally must prove special damages; however, when any allegedly
defamatory words refer to a person in a professional capacity, the professional
need not show that the words caused damage, since it is presumed that any
slanderous reference to someone’s professional capacity is damaging.
Professionals who are called incompetent in front of others have a right to sue
to defend their reputation. However, it is difficult to prove that an individual
comment was injurious. If the person making an injurious comment cannot
prove that the comment is true, then that person can be held liable for
damages.
Libel
Libelous words must be communicated to a third person in order to be an
actionable wrong. Defamatory statements communicated only to the injured
party will not support an action. Truth of a statement is a complete defense.
In a libel or slander per se (on its face) action, a court will presume that certain
words and accusations cause injury to a person’s reputation without proof of
damages. Words or accusations that require no proof of actual harm to one’s
reputation are (1) accusing someone of a crime, (2) accusing someone of
having a loathsome disease, (3) using words that affect a person’s profession
or business, and (4) calling a woman unchaste. Healthcare professionals are,
however, legally protected against libel when complying with a law that
requires the reporting of patient information, such as malaria and smallpox.
Damages typically consist of economic losses, such as loss of business or
employment.
Performance Appraisals Not for General Publication
A statement in a hospital newsletter regarding the discharge of a nursing
supervisor constituted libel per se in Kraus v. Brandsletter. The newsletter
indicated that the hospital’s medical board had discharged the nursing
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supervisor after a unanimous vote of no confidence. Couching the board’s
determination in terms of a vote gave the impression that the board’s
determination had been based on facts that justified the board’s opinion. The
statement tended to injure the nurse’s reputation as a professional because it
did not refer to specifics of her performance, but rather to her abilities as a
professional in general. The reasonable interpretation of the statement in the
newsletter was that the supervisor was incompetent in her professional
capacity, thus giving rise to a cause of action for libel per se.
On the flip side in the same case, an alleged statement that a physician said,
“You nurses will receive your Christmas bonus early, your boss is going to get
fired,” was not slander per se in that it did not injure the nurse in her
professional capacity. In addition, the statement that she was going to be
fired was true.
Performance Appraisal Statements Not Libelous
In Schauer v. Memorial Care System, the plaintiff applied for and was given
a supervisory position at Memorial Hospital’s new catheterization laboratory. In
March 1989, she received an employment appraisal for the period of June
1988 through December 1988. At that time, Schauer’s supervisor rated her
performance as “commendable” in two categories and “fair” in eight
categories, with an overall rating of “fair.” Although Schauer did not lose her
job as a result of the appraisal, she brought an action against the hospital and
her former supervisor for libel and emotional distress as a result of the
appraisal. The hospital moved for summary judgment on the grounds that the
employment appraisal was not defamatory as a matter of law, the hospital had
qualified privilege to write the performance appraisal, and the claim for
emotional distress did not reach the level of severity required for a claim for
intentional infliction of emotional distress. The trial court granted the hospital’s
motion for summary judgment, and Schauer appealed.
The Texas Court of Appeals held that the statements contained in the
performance appraisal were not libelous and that the appraisal was subject to
qualified privilege. Moreover, the hospital’s conduct and the statements
contained in the appraisal did not support the claim for intentional infliction of
emotional distress.
To sustain her claim of defamation, Schauer had to show that the hospital
published her appraisal in a defamatory manner that injured her reputation in
some way. A statement can be unpleasant and objectionable to the plaintiff
without being defamatory. The hospital argued that the statements contained
in the appraisal were truthful, permissible expressions of opinion and not
capable of a defamatory meaning. Schauer’s supervisor prepared the
appraisal as part of her supervisory duties. The appraisal was not published
outside the hospital and was prepared in compliance with the hospital policy
for all employees. Schauer disputed her overall rating of “fair” as being
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libelous. “Clearly, this is a statement of her supervisor’s opinion and is not
defamatory as a matter of law.”
In her performance appraisal, Schauer objected to the statement, “Ms.
Schauer was not sensitive to employee relations.” Schauer conceded in her
deposition that there were a number of interpersonal problems in the
catheterization laboratory and that she did not get along with everyone. The
court found that given these admissions, the statement was not defamatory.
As to the plaintiff’s claim of emotional distress, the plaintiff failed to show that
the hospital acted intentionally and recklessly. The Restatement of Torts,
Second, § 46 (1977) provides:
Liability has been found only where the conduct has been so outrageous in
character, and so extreme in degree, as to go beyond all possible bounds
of decency, and to be regarded as atrocious, and utterly intolerable in a
civilized community. . . . The liability clearly does not extend to mere
insults, indignities, threats, annoyances, petty oppressions, or other
trivialities. Complete emotional tranquility is seldom attainable in this world,
and some degree of transient and trivial emotional distress is part of the
price of living among people. The law intervenes only where the distress is
so severe that no reasonable man could be expected to endure it.
Newspaper Articles
A libel suit was brought against the Miami Herald Publishing Company more
than 2 years after its publication of an editorial cartoon depicting a nursing
facility in a distasteful manner. The cartoon was described in the following
manner:
On October 29, 1980, The Herald published an editorial cartoon which
depicted three men in a dilapidated room. On the back wall was written
“Krest View Nursing Home,” and on the side wall there was a board which
read “Closed by Order of the State of Florida.” The room itself was in a
state of total disrepair. There were holes in the floor and ceiling, leaking
water pipes, and exposed wiring. The men in the room were dressed in
outfits resembling those commonly appearing in caricatures of gangsters.
Each man carried a sack with a dollar sign on it. One of the men was larger
than the other two and was more in the forefront of the picture. One of the
others addressed him. The caption read: “Don’t Worry, Boss, We Can
Always Reopen It As a Haunted House for the Kiddies.”
The court held that the newspaper’s editorial cartoon depicting persons
resembling gangsters in a dilapidated building, identified as a particular
nursing facility that had been closed by state order, was an expression of pure
opinion and was protected by the First Amendment against the libel suit
alleging that the cartoon defamed the owner of the facility.
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In another newspaper libel case, the court in Wisconsin Association of Nursing
Homes v. Journal Co. would not compel the newspapers to accept and print
an advertisement in the exact form submitted by the Wisconsin Association of
Nursing Homes and various individual homes.
Plaintiffs allege in their complaint that the defendants published a series of
“investigative reports” in the Milwaukee Journal which dealt with the quality
of care and services in several nursing homes. Plaintiffs further
characterized the conclusions of the article as being false and erroneous.
As a result, the plaintiffs prepared a full-page advertisement which
purported to respond to and refute the allegations set out in the above
mentioned “reports.” The defendant newspaper refused to publish the
advertisement in the form presented, and referred the question of possibly
libelous matter to the attention of plaintiffs’ attorneys.
The court held that it was within the newspaper’s journalistic discretion to
reject the advertisement on the ground that it contained possibly libelous
material. “[T]he clear weight of authority has not sanctioned any enforceable
right of access to the press. In sum, a court can no more dictate what a
privately owned newspaper can print than what it cannot print.”
Unlike broadcasting, the publication of a newspaper is not a government-
conferred privilege. As we have said, the press and the government have
had a history of disassociation. We can find nothing in the United States
Constitution, any federal statute, or any controlling precedent that allows us
to compel a private newspaper to publish advertisements without editorial
control merely because such advertisements are not legally obscene or
unlawful.
In a very different suit, the appellee in Stevens v. Morris Communications
Corp. alleged that a newspaper article, which identified her as a
representative of a convalescent center at a city council meeting, had defamed
her. She claimed that the article implied that she had responsibility for the
convalescent center’s problems of maintenance and disrepair. The court held
that the newspaper article did not defame the appellee. Using the reasonable
person test, the court found that it was highly unlikely that a reasonable person
could have read the newspaper article as being defamatory.
The Georgia case of Barry v. Baugh, however, presented a unique situation.
The case involved a nurse who brought a defamation action, charging that a
physician slandered her in the course of a consultation concerning the
commitment of her husband to a mental institution. The nurse requested
damages for mental pain, shock, fright, humiliation, and embarrassment. The
nurse alleged that if the physician’s statement were made known to the public,
her job and reputation would be adversely affected. The court held that the
physician’s statement concerning the nurse did not constitute slander because
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the physician was not referring to the nurse in a professional capacity;
therefore, the plaintiff had to demonstrate damages in order to recover. The
plaintiff was unable to show damages.
Defenses to a Defamation Action
Essentially, the two defenses to a defamation action are (1) truth and (2)
privilege. When a person has said something that is damaging to another
person’s reputation, the person making the statement will not be liable for
defamation if it can be shown that the statement is true. A privileged
communication differs from a defamatory statement in that the person making
the communication has a responsibility to do so. For example, many states
have statutes providing immunity to physicians and healthcare institutions in
connection with peer review proceedings. The person making the
communication must do so in good faith, on the proper occasion, in the proper
manner, and to persons who have a legitimate reason to receive the
information.
An administrator’s statements made to a physician’s supervisor regarding the
physician’s alleged professional misconduct are not grounds for a defamation
action as long as the statements are made in good faith. An administrator has
a duty to report complaints about alleged professional misconduct of
physicians working in the hospital. The administrator has qualified privilege to
report such complaints to the physician’s supervisor and other hospital officials
as necessary.
Two types of privilege may provide a defense to an action for defamation:
absolute privilege and qualified privilege. Absolute privilege attaches to
statements made during judicial and legislative proceedings as well as to
confidential communications between spouses. Qualified privilege attaches to
statements such as those made as a result of a legal or moral duty to speak in
the interests of third persons and may provide a successful defense only when
such statements are made in the absence of malice. If it can be shown that a
speaker made a statement out of monetary gain, hatred, or ill will, the law will
not permit the speaker to hide behind the shield of privilege to avoid liability for
defamation.
Nurse Manager and Privileged Information
The defense of privilege is illustrated in the case of Judge v. Rockford
Memorial Hospital, whereby a nurse brought an action for libel. The action
was based on a letter written to a nurses’ professional registry by the director
of nurses of the hospital to which the nurse had been assigned by the registry.
In the letter, the director of nurses stated that the hospital did not wish to have
the nurse’s services available to them because of certain losses of narcotics
during times when this particular nurse was on duty. The court refused the
nurse recovery. Because the director of nurses had a legal duty to make the
communication in the interests of society, the director’s letter constituted a
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privileged communication. Therefore, the court held that the letter did not
constitute libel because it was privileged.
Public Figures
It is important to note that public figures have more difficulty in pursuing
defamation litigation than the average individual. A person who occupies a
position of considerable public responsibility is considered a public figure for
the purposes of the law of defamation and is generally more vulnerable to
public scrutiny. Legal action against a public figure often will be denied in the
absence of any showing of actual malice in connection with alleged
defamatory references to a plaintiff. Actual malice applies only in cases
involving public figures and encompasses knowledge of falsity or recklessness
as to truth.
Television Station Sued by Board Chairman
The chairman of a publicly owned and operated county hospital in Drew v.
KATV Television brought a suit against a television station for defamation.
The station reported during a news broadcast that the board chairman had
been charged with a felony when he had been charged with two misdemeanor
counts of solicitation to tamper with evidence (both of which were dismissed at
trial). The second news report implied that the plaintiff was involved in a drug
investigation being conducted at the hospital where he served as chairman of
the board. The plaintiff occupied a position of considerable public
responsibility, and he was considered a public figure for the purposes of the
law of defamation. The circuit court dismissed the case on the defendant’s
motion for summary judgment, and the plaintiff appealed. The Arkansas
Supreme Court held that the trial court properly ordered summary dismissal of
the plaintiff’s action against the television station in the absence of any
showing of malice in connection with the allegedly defamatory references to
the plaintiff during the news broadcasts.
ACCUSATORY STATEMENTS NOT DEFAMATORY
Citation: Chowdhry v. North Las Vegas Hospital, Inc., 851 P.2d 459 (Nev.
1993)
Facts
On October 2, a young woman entered the emergency department of a
hospital complaining of chest pain and shortness of breath. Dr. Lapica, the
emergency physician on duty, saw her. Dr. Lapica diagnosed the patient as
suffering from a possible pneumohemothorax, which required the placement
of a chest tube to drain accumulated fluids. Lapica contacted Dr. Chowdhry,
a physician who had recently performed surgery on the young woman and
who was also the on-call thoracic surgeon at the hospital, and informed
Chowdhry that his services were required at the hospital. The record
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revealed that Chowdhry refused to return to the hospital to treat the patient
because he had recently left there and would treat her only if she were
transferred to University Medical Center (UMC). Chowdhry testified that he
could not return to the hospital because of a conflicting emergency at UMC.
Lapica then contacted the hospital’s chief of staff, Dr. Wilchins, and told him
that Chowdhry refused to come to the hospital and attend to the patient.
Both physicians concluded that if the patient could be safely transported to
UMC, the transfer should be affected so that Chowdhry could treat her.
The patient was ultimately transported to UMC where Lapica and Ms. Crow,
the supervising nurse at the hospital, prepared incident reports detailing the
events and submitted them to the administrator, Mr. Moore.
On October 3, Mr. Moore informed Dr. Silver, UMC’s Chief of Surgery, that
Chowdhry had refused to come to the hospital emergency department to
treat the patient. The matter was directed to the hospital’s surgery
committee, which recommended summary suspension of Chowdhry’s staff
privileges.
On November 1, in response to Chowdhry’s request, a hearing was held
before the medical executive committee. As a result of the hearing,
Chowdhry’s staff privileges were reinstated, but a reprimand was placed in
his file for jeopardizing himself, the patient, and the hospital. The hospital
denied Chowdhry’s subsequent request to have the reprimand expunged
from his record, thus prompting Chowdhry to file an action against the
hospital, Silver, Moore, Wilchins, and Lapica.
Chowdhry’s complaint alleged theories of liability based upon negligence,
breach of contract, conspiracy, defamation, and negligent and intentional
infliction of emotional distress. The district court concluded that Chowdhry
had no reasonable basis for bringing the action and awarded attorneys’ fees
and costs to the defendants, and Chowdhry appealed.
Issue
Did the district court err in dismissing the claims of defamation and infliction
of emotional distress?
Holding
The Nevada Supreme Court held that the district court did not err in
dismissing the claims of defamation and infliction of emotional distress.
Reason
Chowdhry’s emotional distress claims are premised upon respondents’
accusations of patient abandonment. Chowdhry testified that, as a result,
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“he was very upset” and could not sleep. Insomnia and general physical or
emotional discomfort were found to be insufficient to satisfy the physical
impact requirement for emotional distress. Thus, Chowdhry failed, as a
matter of law, to present sufficient evidence to sustain verdicts for negligent
or intentional infliction of emotional distress.
To establish a prima facie case of defamation, a plaintiff must prove (1) a
false and defamatory statement by defendant concerning the plaintiff, (2) an
unprivileged publication to a third person, (3) fault amounting to at least
negligence, and (4) actual or presumed damages. The actual statements
made by the various respondents were not that Chowdhry “abandoned” his
patient, but that he “failed to respond” or “would not come” to the hospital to
treat his patient. The record reflected that the respondents made the
statements to hospital personnel and other interested parties (e.g., the
patient’s mother) in the context of reporting what was reasonably perceived
to be Chowdhry’s refusal to treat the patient at the hospital. The statements
attributable to the respondents, taken in context, are not reasonably capable
of a defamatory construction.
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▸ FRAUD
Fraud is a willful and intentional misrepresentation that could cause harm or
loss to a person or property. It includes any cunning, deception, or artifice
used in violation of legal or equitable duty to circumvent, cheat, or deceive
another. The forms it may take and the means by which it may be practiced
are as multifarious as human ingenuity can devise, and the courts consider it
unwise or impossible to formulate an exact, definite, and all-inclusive definition
of the action.
To prove fraud, the following facts must be shown:
1. An untrue statement known to be untrue by the party making it and
made with the intent to deceive
2. Justifiable reliance by the victim on the truth of the statement
3. Damages as a result of that reliance
Concealment of Information
The plaintiff in Robinson v. Shah was a patient of the defendant, Dr. Shah,
from 1975 to 1986. During that period, Dr. Shah treated Robinson for various
gynecologic disorders. On November 9, 1983, Dr. Shah performed a total
abdominal hysterectomy and bilateral salpingo-oophorectomy on Robinson.
Approximately 1 week following surgery, Robinson was discharged from the
hospital and was assured that there were no complications or potential
problems that might arise as a result of the surgery. She began to experience
abdominal distress the day after she was discharged. She consulted Dr. Shah
about her symptoms, and he ordered X-rays to be taken of Robinson’s
kidneys, ureter, and bladder in an effort to explain her discomfort.
The X-rays were taken at St. Joseph Memorial Hospital and were read and
interpreted by Dr. Cavanaugh. After reading the X-rays, Dr. Cavanaugh called
Dr. Shah, reporting the X-rays showed the presence of surgical sponges in
Robinson’s abdomen. Dr. Cavanaugh also sent Dr. Shah a copy of a written
report reflecting his findings.
Dr. Shah decided to conceal from Robinson the findings of the X-rays. He
intentionally lied, telling her that the X-rays were negative and that there were
no apparent or unusual complications from the surgery. He at no time revealed
that surgical sponges were left in Robinson’s abdomen. Over the next several
years, Robinson continued to see Dr. Shah for gynecologic checkups.
Although Robinson continued to experience abdominal pain and discomfort,
Dr. Shah failed to reveal the existence of the surgical sponges in her
abdomen. Robinson eventually ceased seeing Dr. Shah as her physician in
1986.
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Because of her ongoing concerns about the pain and discomfort in her
abdomen, as well as intestinal, urologic, and gynecologic problems, she
consulted other physicians. Although Robinson brought her complaints to the
attention of other physicians, no one was able to diagnose the source of her
problems. Finally, in 1993, one of the physicians attending to Robinson’s
problems diagnosed a pelvic mass, which he felt could be causing her
discomfort. Robinson underwent pelvic sonograms and X-rays, which revealed
the existence of surgical sponges in Robinson’s abdomen.
Robinson filed a lawsuit contending that since November 18, 1983, Dr. Shah
had knowledge of the presence of the surgical sponges in her abdomen and
knew that future complications could arise from this condition. Despite this
knowledge, the plaintiff contended, the defendant continued to conceal the
existence of the surgical sponges in her abdomen.
The trial court found that the plaintiff was unable to discover the fact that the
defendant negligently left surgical sponges in her abdomen and that this fact
was fraudulently concealed from the plaintiff. The plaintiff appealed the trial
court’s decision.
The appeals court held that although the action in this case was filed more
than 10 years after the fraud was perpetrated, the statute of limitations was not
tolled because of the defendant’s fraudulent concealment of information from
the patient. The court decided that allowing such misrepresentation would only
serve to encourage such behavior.
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▸ INVASION OF PRIVACY
Invasion of privacy is a wrong that invades the right of a person to personal
privacy. Absolute privacy has to be tempered with reality in the care of any
patient, and the courts recognize this fact. Disregard for a patient’s right to
privacy is legally actionable, particularly when patients are unable to protect
themselves adequately because of unconsciousness or immobility.
The right to privacy is implied in the Constitution. It is recognized as a right to
be left alone—the right to be free from unwarranted publicity and exposure to
public view, as well as the right to live one’s life without having one’s name,
picture, or private affairs made public against one’s will. Healthcare
organizations and professionals may become liable for invasion of privacy if,
for example, they divulge information from a patient’s medical record to
improper sources or if they commit unwarranted intrusions into a patient’s
personal affairs.
The information in a patient’s medical record is confidential and should not be
disclosed without the patient’s permission, with the exception of occasions
when there is a legal obligation or duty to disclose the information (i.e.,
reporting of communicable diseases, gunshot wounds, and child abuse).
Those who come into possession of the most intimate personal information
about patients have both a legal and an ethical duty not to reveal confidential
communications.
Employee/Patient Confidentiality Breached
Unfortunately, familiarity with an organization’s healthcare environment tends
to diminish the conscious concern employees should have for the protection of
patient privacy. The plaintiff in Vernuil v. Poirie, a former hospital employee,
was awarded $15,000 in a legal action against her supervisor and hospital for
invasion of privacy. The plaintiff claimed that while she was a patient and in
the postoperative recovery room, her supervisor lifted her sheet in an attempt
to view her abdominal incision. The court of appeals held that evidence
sustained a finding of invasion of privacy. Because the supervisor’s conduct
occurred during the time and place of his employment, the hospital was jointly
liable for damages. “Ensuring a patient’s well-being from all others, including
staff, while the patient is helpless under the effects of anesthesia is part of its
normal business.”
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▸ INFLICTION OF MENTAL DISTRESS
The intentional or reckless infliction of mental distress is characterized by
conduct that is so outrageous that it goes beyond the bounds tolerated by a
decent society. It is a civil wrong for which a tortfeasor can be held liable for
damages. Mental distress includes mental suffering resulting from painful
emotions such as grief, public humiliation, despair, shame, and wounded
pride. Liability for the wrongful infliction of mental distress may be based on
either intentional or negligent misconduct. A plaintiff may recover damages if
he or she can show that the defendant intended to inflict mental distress and
knew or should have known that his or her actions would give rise to it.
Recovery generally is permitted even in the absence of physical harm.
To prove the infliction of emotional distress, the plaintiff must establish the
following:
1. The defendant’s conduct was intentional or reckless.
2. The conduct was extreme and outrageous.
3. The conduct caused emotional distress to the plaintiff.
4. The emotional distress was severe.
All of these elements were present in Lucchesi v. Stimmell, where the
plaintiff brought a legal action against a physician for intentional infliction of
emotional distress, claiming that the physician failed to be present during
unsuccessful attempts to deliver her premature fetus and that he thereafter
failed to disclose to her that the fetus was decapitated during attempts to
achieve delivery by pulling on the hip area to free the head. The judge
instructed the jury that it could conclude that the physician had been guilty of
extreme and outrageous conduct for staying at home and leaving the delivery
in the hands of a first-year intern and a third-year resident, neither of whom
was experienced in breech deliveries.
Mother Shown Her Premature Infant
The mother of a premature infant who died shortly after birth went to her
physician for a 6-week checkup. She noticed a report in her medical chart that
stated that the child was past the fifth month in development and that hospital
rules and state law prohibited disposal of the infant as a surgical specimen.
The mother questioned her physician regarding the infant. The physician
requested that his nurse take the mother to the hospital. An employee at the
hospital took the mother to a freezer. The freezer was opened and the mother
was handed a jar containing her premature infant. The circuit court found that
the hospital, through its employees, committed intentional infliction of
emotional distress. On appeal, the court of appeals in Johnson v. Woman’s
Hospital held that the jury could find that the hospital’s conduct in displaying
the infant was outrageous conduct.
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As to the outrageous conduct theory we hold that there is evidence from
which a jury could find that the conduct of the defendant hospital in
displaying the infant in the manner and under circumstances described
was outrageous conduct as defined by our Supreme Court in the Medlin
case, supra, and that such conduct recklessly caused severe emotional
distress to plaintiff Mrs. Johnson. We are of the opinion that a recitation of
the foregoing facts could be considered to cause the exclamation of
“outrage!” from the general community.
Verbal Abuse of a Patient
In another case, an action was brought in Greer v. Medders by a patient and
his wife against the physician for mental distress. In this case, the defendant
physician had been providing on-call coverage for the attending physician,
who was on vacation. When the patient, who had been admitted to the
hospital, had not seen the covering physician for several days, he called the
physician’s office to complain. The physician later entered the patient’s room
in an agitated manner and became verbally abusive in the presence of the
patient’s wife and nurse. He said to the patient, “Let me tell you one damn
thing, don’t nobody call over to my office raising hell with my secretary. . . . I
don’t have to be here every damn day checking on you because I check with
physical therapy. . . . I don’t have to be your damn doctor.” When the
physician left the room, the plaintiff’s wife began to cry, and the plaintiff
experienced episodes of uncontrollable shaking for which he received
psychiatric treatment. The superior court entered summary judgment for the
physician, and the plaintiff appealed. The Georgia Court of Appeals held that
the physician’s abusive language willfully caused emotional upset and
precluded summary judgment for the defendant.
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▸ PRODUCTS LIABILITY
Products liability is the accountability of a manufacturer, seller, or supplier of
chattels to a buyer or other third party for injuries sustained because of a
defect in a product. An injured party may proceed with a lawsuit against a
seller, manufacturer, or supplier on three legal theories: (1) negligence, (2)
breach of warranty (express or implied), and (3) strict liability. Many states
have enacted comprehensive products liability statutes. These statutory
provisions can be very diverse such that the U.S. Department of Commerce
has promulgated a Model Uniform Products Liability Act (MUPLA) for voluntary
use by the states. Three types of product defects that incur liability are design
defects, manufacturing defects, and defects in marketing (e.g., providing
improper instructions or making exaggerated claims about a product’s use).
A $200 million settlement was reached over the deadly meningitis outbreak
that was linked to a Massachusetts pharmacy. The funds were set aside for
the victims of the outbreak and their families. The defendants in the New
England Compounding Center (NECC) are facing criminal charges.
Negligence
Negligence, as applied to products liability, requires the plaintiff to establish
duty, breach, injury, and causation. The manufacturer of a product is not liable
for injuries suffered by a patient if they are the result of negligent use by the
user. Product users must conform to the safety standards provided by the
manufacturers of supplies and medical devices. Failure to follow proper safety
instructions can prevent recovery in a negligence suit if injury results from
improper use.
Because manufacturers are liable for injuries that result from unsafe product
design, they generally provide detailed safety instructions to the users of their
products. Failure to provide such instructions could be considered negligence
on the part of the manufacturer.
FRAMINGHAM: TRIAL DATE SET FOR NECC PHARMACY
DEFENDANTS
BOSTON—A federal judge has set an April 10, 2017 trial date for the
remaining 10 defendants in the criminal cases stemming from the deadly
fungal meningitis outbreak in 2012.
In an order issued Tuesday, U.S. District Judge Richard G. Stearns set the
spring date for the 10 who are facing charges ranging from mail and wire
fraud to racketeering.
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—Walter F. Roche, Jr., MetroWest Daily News, August 23, 2016
Selling Equipment with a Known Hazardous Design
An action in Airco v. Simmons National Bank, Guardian, et al. was brought
against a physician partnership that provided anesthesia services to the
hospital and Airco, Inc., the manufacturer of an artificial breathing machine
used in the administration of anesthesia. It was alleged that the patient
suffered irreversible brain damage because of the negligent use of the
equipment and its unsafe design. The machine had been marketed despite
prior reports of a foreseeable danger of human error brought about by the
presence of several identical black hoses and the necessity of connecting
them correctly to three ports of identical size placed closely together. The
machine lacked adequate labels and warnings, according to the reports. The
jury awarded over $1 million in compensatory damages against the physician
partnership and Airco, Inc. Punitive damages in the amount of $3 million were
awarded against Airco, Inc. On appeal of the punitive damages award, the
Arkansas Supreme Court held that the evidence for punitive damages was
sufficient for the jury. The manufacturer acted in a persistent reckless
disregard of the foreseeable dangers in use of the machine by continuing to
sell it with the known hazardous design.
Tainted Tylenol Capsules
Negligence, as well as breach of warranty and strict liability, was not
established in the well-publicized case of the 1980s involving a woman who
died after ingesting Tylenol capsules tainted with potassium cyanide. The
decedent’s estate in Elsroth v. Johnson & Johnson sued the manufacturer
and the retail grocery store that sold the over-the-counter drug. The
defendants moved for a summary judgment. The U.S. district court held that
the retailer did not have a duty to protect the decedent from acts of tampering
by an unknown third party. The manufacturer was not liable under an
inadequate warning theory. Manufacturers are under a duty to warn of the
dangers that may be associated with the normal and lawful use of their
products, but they need not warn that their products may be susceptible to
criminal misuse.
Negligent Use of a Bovie Plate
Negligent use of a product may lead to liability, as was the case in Monk v.
Doctors Hospital. In this case, the patient was admitted to the hospital for
abdominal surgery. Prior to surgery, the patient asked the surgeon also to
remove three moles from the right arm and one from the right leg. The
surgeon instructed a hospital nurse to prepare a Bovie machine but was not
present while the machine was set up. The nurse placed the contact plate of
the Bovie machine under the patient’s right calf in a negligent manner, and the
patient suffered burns. Manufacturer instruction manuals, supplied to the
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hospital, supported the claim that the plate was placed improperly under the
patient. The trial court directed a verdict in favor of the hospital and the
physician. The appellate court found that there was sufficient evidence from
which the jury could conclude that the Bovie plate was applied in a negligent
manner. There also was sufficient evidence, including the manufacturer’s
manual and expert testimony, from which the jury could find that the physician
was independently negligent.
This case demonstrates the necessity for an organization to require conformity
to the safety standards provided by the manufacturers of supplies and medical
devices. As evidenced in the previous case, such failure can cause an
organization and its staff to be held liable for negligence. This case should
alert manufacturers of the necessity to provide appropriate safety instructions
to the users of their products. It can be assumed that failure to provide such
instructions could be considered negligence on the part of the supplier.
Defective Packaging
Cotita, a registered nurse, stuck himself with a syringe manufactured by the
defendant-appellee, PharmaPlast. The syringe, although still in its sterile
packaging, was missing the protective cap that normally covers the tip of the
needle. Improper packaging allowed the needle to pierce its sterile plastic
covering and penetrate the protective gloves Cotita was wearing. Because of
the presence of the patient’s blood on his gloves at the time of the needlestick,
Cotita feared that he had been exposed to the human immunodeficiency virus
(HIV). Subsequent tests revealed that Cotita was not HIV positive;
nevertheless, he sued PharmaPlast, seeking damages for mental anguish
stemming from his fear of contracting HIV.
PharmaPlast admitted defective packaging, and the district court granted
summary judgment for the plaintiff on the issue of the defective state of the
syringe. PharmaPlast asserted Cotita was negligent in his use of the syringe.
Cotita objected to the introduction of evidence concerning his negligence.
The damage issue was tried before a jury that returned a verdict for $150,000
in Cotita’s favor. This amount was reduced by 30%, a figure that the jury found
reflected his negligence. Cotita maintained that the issue of his negligence
should not have been considered by the jury or used to reduce the amount of
his award.
On appeal, the U.S. Court of Appeals found no error in the district court’s
application of comparative fault. PharmaPlast presented evidence that the
procedures used by the nurse were in violation of universal safety precautions
and procedures that are standard in the healthcare industry. The district court
here was entitled to determine that the application of comparative fault would
ultimately encourage workers in the healthcare field to follow the established
procedures for handling syringes.
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Failure to Warn
Merck pulled its painkiller, Vioxx, a drug it manufactured for the treatment of
arthritis, off pharmacy shelves after participants in a study experienced
adverse cardiovascular events compared to those taking a placebo. Merck
officials had argued that Vioxx was not the cause of users’ heart attacks and
the company had properly warned doctors and consumers about its risks.
Following a 3-year battle, Merck announced in November 2007 that it would
pay $4.85 billion to settle plaintiff claims over injuries linked to Vioxx. The
company paid the money into a fund, and people who claimed Vioxx injured
them could petition for monetary relief.
Breach of Warranty
A warranty is a particular type of guarantee (a pledge or assurance of
something) concerning goods or services provided by a seller to a buyer.
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.
Express Warranty
An express warranty includes specific promises or affirmations 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. For example,
in Crocker v. Winthrop Laboratories, the patient, Mr. Crocker, was admitted
to the hospital for a hernia operation. His physician prescribed both Demerol
and Talwin for pain. After discharge from the hospital, Crocker developed an
addiction to Talwin and was able to obtain prescriptions from several
physicians to support a habit he developed. He was eventually admitted to the
hospital for detoxification. After 6 days, Crocker walked out of the hospital and
went home. He became agitated and abusive, threatening his wife, and she
eventually called a physician at his request. The physician arrived and gave
Crocker an injection of Demerol. Crocker then retired to bed and subsequently
died. Action was brought against the drug company for the suffering and
subsequent wrongful death that occurred as the proximate result of the
decedent’s addiction to Talwin.
The district court rendered a judgment for the plaintiff and the court of appeals
reversed. On further appeal, the Texas Supreme Court held that when a drug
company positively and specifically represents its product to be free and safe
from all dangers of addiction and when the treating physician relies on such
representation, the drug company is liable when the representation proves to
be false and injury results.
Implied Warranty
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 is designed. Implied warranties are in effect
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when the law implies that one exists by operation of law as a matter of public
policy for the protection of the public. For example, Jacob E. Decker & Sons v.
Capps is a case involving the question of the liability of a manufacturer for
selling tainted food products to the consumer for damages sustained by
ingestion of contaminated sausage. One member of a family died and others
became seriously ill as a result of eating contaminated food. The jury found
that the sausage had been contaminated before being packaged by the
defendant and that it was unfit for human consumption. The Texas Supreme
Court decided that the defendant was liable for the injuries sustained by the
consumers of the contaminated food under an implied warranty. Liability in
such a case is based neither on negligence nor on a breach of the usual
implied contractual warranty; instead, it is based on the broad principle of
public policy to protect human health and life.
There was no implied warranty for contaminated blood where the patient in
Perlmutter v. Beth David Hospital contracted serum hepatitis from a blood
transfusion. The plaintiff relied on an implied sales warranty as the basis of her
suit. The court denied recovery, pointing out that even though a separate
charge of $60 was made for the blood, the charge was incidental to the
primary contract with the hospital for services. Because there was no claim of
negligence, the court determined that blood provided by the hospital was a
service, rather than a sale, and therefore, barred recovery by the patient. The
rationale in this case did not extend to relieve commercial blood banks from
liability on the basis of strict liability warranty theories. Action could have been
instituted against the hospital if it had been shown that the hospital was
negligent in handling the blood.
Strict Liability
Strict liability is a legal doctrine that causes some persons or entities to be
responsible for the damages their actions or products cause, regardless of
“fault” on their part. Strict liability often applies when people engage in
inherently hazardous activities, such as blasting in a city. If the blasting injures
a person, no matter how careful the blasting company is, it could be liable for
the injuries suffered.
Strict liability also applies in cases involving the manufacturers of products
such as drugs and medical equipment. Responsibility without fault makes
possible an award of damages without proof of a manufacturer’s negligence.
The plaintiff only needs to show that he or she suffered injury while using the
manufacturer’s product in the prescribed way. The following elements must be
established in order for a plaintiff to proceed with a case on the basis of strict
liability:
1. The product must have been manufactured by the defendant.
2. The product must have been defective at the time it left the hands of
the manufacturer or seller. The defect in the product normally consists
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of a manufacturing defect, a design defect in the product, or an
absence or inadequacy of warnings for the use of the product.
3. The plaintiff must have been injured by the specific product.
4. The defective product must have been the proximate cause of injury to
the plaintiff.
The number of drug-related lawsuits increased significantly between 2000 and
2006, as noted in the following news article.
MORE DRUGS GET SLAPPED WITH LAWSUITS
Between 2000 and 2006, “more than 65,000 product liability lawsuits have
been filed against prescription drug makers, the most of any industry,” says
researcher Thomson West.
The pace isn’t likely to slow, given the number of drugs on the market, the
millions of consumers taking them, and the skill of plaintiffs’ lawyers . . .”
—Julie Schmit, USA Today, August 23, 2006
Products liability–related lawsuits are a worrisome concern for pharmaceutical
manufacturers as lawyers continue to use TV advertisements to seek clients
who believe they have been harmed by medications. At the same time, drug
manufacturers, in an attempt to slow the surge of lawsuits, are including
frightening disclaimers in their drug-related advertisements.
Manufacturer Responsible for Defective Latex Gloves
In Green v. Smith & Nephew AHP, Inc., Green began her employment at St.
Joseph’s Hospital in Milwaukee, where she worked as a radiology
technologist. Hospital rules required Green to wear protective gloves while
attending patients. To comply with these rules, Green wore powdered latex
gloves manufactured by Smith & Nephew AHP (S&N). Initially, Green used
one or two pairs of gloves per shift. However, upon her promotion to the
computed tomography (CT) department, her use of gloves increased. Green’s
job required her to use approximately 40 pairs of gloves per shift. Green
began suffering various health problems. Her hands became red, cracked, and
sore, and began peeling. Green was eventually diagnosed with a latex allergy.
Her symptoms grew increasingly severe, eventually culminating in an acute
shortness of breath, coughing, tightening of the throat, and hospitalization on
more than one occasion.
Green claimed that S&N should be held strictly liable for her injuries. She
argued that although S&N could have significantly reduced the protein levels
in and discontinued powdering its gloves by adjusting its production process,
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S&N nonetheless used a production process that maintained these defects in
the gloves. These defects, Green alleged, created the unreasonable danger
that S&N’s gloves would cause consumers to develop an allergy to latex and
suffer allergy-related conditions. The primary cause of an allergy to latex is
latex gloves, and for this reason, an allergy to latex disproportionately affects
members of the healthcare profession. According to Green’s medical experts,
the vast majority of people with an allergy to latex (up to 90%) are healthcare
workers. In addition, although an allergy to latex is not common among the
general population, Green’s medical experts testified that it affects between 5
and 17% of all healthcare workers in the United States.
Although a manufacturer is not under a duty to manufacture a product that is
absolutely free from all possible harm to every individual, it is the duty of the
manufacturer not to place upon the market a defective product that is
unreasonably dangerous to the ordinary consumer.
The jury returned a verdict in favor of Green, finding that S&N’s gloves were
defective and unreasonably dangerous, and that they caused Green’s injuries.
The jury awarded Green $1 million in damages. The court of appeals affirmed
the circuit court judgment. S&N then petitioned the Wisconsin Supreme Court
to review the court of appeals decision.
The Wisconsin Supreme Court affirmed the decision of the court of appeals.
Strict products liability imposes liability without regard to negligence and its
attendant factors of duty of care and foreseeability. Regardless of whether a
manufacturer could foresee the potential risks of harm inherent in its defective
and unreasonably dangerous product, strict products liability holds the
manufacturer responsible for injuries caused by that product. When a
manufacturer places a defective and unreasonably dangerous product into the
stream of commerce, the manufacturer, not the injured consumer, should bear
the costs of the risks posed by the product.
Negligent Handling of Blood
A blood bank was found strictly liable in Weber v. Charity Hospital of Louisiana
at New Orleans when a hospital patient developed hepatitis from a
transfusion of defective blood during surgery. Evidence established that the
blood bank collected, processed, and sold the blood to the hospital. Although
the hospital administered the blood, absent any negligence in its handling or
administration, it was not liable for the patient’s injury. Many states have
enacted statutes to exempt blood from the product category and thus remove
blood products from the theory of strict liability.
Res Ipsa Loquitur
Liability also may be based on the concept of res ipsa loquitur (the thing
speaks for itself) by establishing the following:
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1. The product did not perform in the way intended.
2. The product was not tampered with by the buyer or third party.
3. The defect existed at the time it left the defendant manufacturer.
Mislabeled Pain Patches
A manufacturer mislabeled a box of Duragesic patches, a strong prescription
medication for moderate to severe chronic pain, marking the box as containing
25-mg patches. In actuality, the box contained 100-mg patches. The patient
placed a patch on her back to provide relief of severe back pain. Instead of
receiving the 25-mg dosage recommended by her physician, she received 100
mg, four times the recommended dosage. The patient went into a coma and
eventually died.
Products Liability Defenses
Defenses against recovery in a products liability case include:
1. Assumption of a risk (e.g., voluntary exposure to such risks as
radiation treatments and chemotherapy treatments)
2. Intervening cause (e.g., an intravenous solution contaminated by the
negligence of the product user, rather than that of the manufacturer)
3. Contributory negligence (e.g., use of a product in a way for which it
was not intended)
4. Comparative fault (e.g., injury as a result of the concurrent negligence
of both the manufacturer and plaintiff)
5. Disclaimers (e.g., manufacturers’ inserts and warnings regarding
usage and contraindications of their products)
Courts often invalidate disclaimers and waivers of liability for products as
being against public policy. Warranties are limited so that manufacturers and
retailers are held responsible for personal injuries caused by the use of a
product.
THE COURT’S DECISION
The Missouri Court of Appeals held that the evidence supported a finding
that the security guards falsely imprisoned the physician and that the
physician was entitled to punitive damages on the false imprisonment claim.
The defendants’ testimony provided the jury with sufficient evidence to
establish that the plaintiff was held without justifiable cause. The testimony
supported a finding that the arrest was self-serving and resulted in the false
imprisonment.
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▸ CHAPTER REVIEW
1. Intentional wrongdoing involves a willful act that violates another
person’s interests. Not only must the action be intentional, but the
perpetrator must realize that the action will result in harm. Intentional
torts include:
Assault and battery: Assault is the infringement on the mental
security or tranquility of another person. Battery is the violation
of another person’s physical integrity. No actual physical harm
needs to have occurred for an individual to be guilty of assault.
False imprisonment is the unlawful restraint of an individual’s
personal liberty or the unlawful restraint or confinement of an
individual. For a false imprisonment charge to warrant
recovery, the plaintiff must be aware of the confinement and
have no reasonable means of escape.
Defamation of character is a false oral or written
communication to someone other than the individual defamed
that subjects that individual’s reputation to scorn and ridicule in
the eyes of a substantial number of respectable people in the
community. Two aspects of defamation of character are:
Libel: written defamation.
Slander: spoken (verbal) form of defamation.
Fraud is a willful and intentional misrepresentation that could
cause harm or loss to an individual or property. To prove fraud,
the following elements must be established: (1) an untrue
statement known to be untrue by the party making it and made
with the intent to deceive; (2) a justifiable reliance by the victim
on the truth of that statement; and, (3) damages as a result of
that reliance.
Invasion of privacy is a wrong that interferes with the right of an
individual to personal privacy.
Infliction of mental distress is conduct so outrageous that it
goes beyond the bounds tolerated by a decent society. Mental
distress can include mental suffering from painful emotions
such as grief, public humiliation, despair, shame, and wounded
pride.
Products liability is the liability of a manufacturer, seller, or
supplier of chattels to a buyer or other third party for injuries
sustained because of a defect in a product.
2. Theories for a products liability lawsuit include:
Negligence
Failure to warn
Breach of warranty
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Express warranty
Implied warranty
Strict liability: liability without fault that makes possible an
award of damages without any proof of manufacturer
negligence. The plaintiff needs only to show that he or she
suffered injury while using the manufacturer’s product in the
prescribed way.
3. Products liability defenses include:
Assumption of a risk
Intervening cause
Contributory negligence
Comparative fault
Disclaimers
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▸ REVIEW QUESTIONS
1. Describe the various categories of intentional torts.
Describe the difference between assault and battery.
What is defamation of character? What two forms can it take?
Under what circumstances can a patient be held in a hospital
against his or her will?
What is fraud? What three elements must be present to
establish fraud?
Describe how a patient’s privacy can be invaded.
What is the infliction of mental distress? Give an example.
2. What are the legal theories an injured party can pursue when filing a
lawsuit against a seller, manufacturer, or supplier of goods?
3. Describe the defenses often used in a products liability case.
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▸ NOTES
1. 865 S.W.2d 833 (Mo. Ct. App. 1993).
2. No. Crim. 4-87-44 (D. Minn. Sept. 3, 1987) (unpublished).
3. 457 A.2d 431 (N.J. 1983).
4. 744 N.W.2d 89 (Ia. 2008).
5. 504 So.2d 22 (Ala. 1986).
6. 841 F.2d 851 (8th Cir. 1988).
7. 358 S.E.2d 865 (Ga. Ct. App. 1987).
8. Judith Garrard et al., “Evaluation of Neuroleptic Drug Use by Nursing Home
Elderly Under Proposed Medicare and Medicaid Regulations,” Journal of the
American Medical Association 265 (1991): 463.
9. 461 S.W.2d 195 (Tex. Ct. App. 1970).
10. 562 N.Y.2d 127 (N.Y. App. Div. 1990).
11. Id. at 129.
12. 856 S.W.2d 437 (Tex. Ct. App. 1993).
13. Id. at 447.
14. Id.
15. Keller v. Miami Herald Publishing Company, 778 F.2d 711 (11th Cir. 1985).
16. Id. at 713.
17. 285 N.W.2d 891 (Wis. Ct. App. 1979).
18. Id. at 893.
19. Id. at 894.
20. Associates and Aldrich Co. v. Times Mirror Co., 440 F.2d 133, 136 (9th Cir.
1971).
21. 317 S.E.2d 652 (Ga. Ct. App. 1984).
22. 143 S.E. 489 (Ga. Ct. App. 1965).
23. Id.
24. Miller-Douglas v. Keller, 579 So. 2d 491 (La. Ct. App. 1991).
25. 150 N.E.2d 202 (Ill. App. Ct. 1958).
26. 739 S.W.2d 680 (Ark. 1987).
27. 936 P.2d 784 (Kans. App. 1997).
28. 589 So. 2d 1202 (La. Ct. App. 1991).
29. Id. at 1204.
30. 716 P.2d 1013 (Ariz. 1986).
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31. 527 S.W.2d 133 (Tenn. Ct. App. 1975).
32. Id. at 140.
33. 336 S.E.2d 329 (Ga. App. 1985).
34. Id.
35. 638 S.W.2d 660 (Ark. 1982).
36. 700 F. Supp. 151 (S.D.N.Y. 1988).
37. 403 F.2d 580 (D.C. Cir. 1968).
38. Id.
39. 974 F.2d 598 (5th Cir. 1992).
40. 514 S.W.2d 429 (Tex. 1974).
41. 164 S.W.2d 828 (Tex. 1942).
42. 123 N.E.2d 793 (N.Y. 1955).
43. 629 N.W.2d 727 (2001).
44. 487 So. 2d 148 (La. Ct. App. 1986).
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© alejandro dans neergaard/Shutterstock
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CHAPTER 5
Tort Reform and Risk Reduction
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▸ LEARNING OBJECTIVES
The reader, upon completion of this chapter, will be able to:
Discuss the ways in which a provider can practice defensive medicine.
Describe various tort reform programs designed to lower the cost of
malpractice insurance.
Describe various programs that can help reduce the number of
malpractice claims.
The tort system has proven to be inadequate in the prevention of medical
malpractice. Damage awards as deterrents to malpractice have failed to
reduce the number of claims. Exorbitant jury awards and malpractice
insurance premiums continue to cost the healthcare industry billions of dollars
annually. Given the difficulties in the present tort system, we often become
victims of the failures of medicine as opposed to beneficiaries of its many
successes. Dr. Gregg Roslund writes in Emergency Physician’s Monthly: “Do
you think our medical liability system has been broken for a while? If so, you’re
not alone. And now, with the recent enactment of the Affordable Care Act, our
resources are more limited, our decisions more scrutinized, and we’re going to
have to do more with less.” With changes in the political arena, it is unclear
how changes in the Affordable Care Act will affect malpractice premiums and
physician income.
Physicians have altered, limited, or closed their practices after having spent
the most productive years of their lives training to practice medicine. Many
obstetricians/gynecologists, for example, have dropped the high-risk obstetrics
portion of their practices to reduce their malpractice premiums. As a result, it
has become more difficult for patients to find a physician to get the care they
need. Frivolous and unscrupulous malpractice actions have caused physicians
to place limitations on their scope of practice.
Physicians who wish to practice their chosen specialty and remain financially
independent often resort to the practice of defensive medicine. Defensive
medicine involves overprescribing diagnostic tests and avoiding more risky,
lawsuit-prone procedures, thus reducing the likelihood of litigation and the
associated risks of higher insurance premiums. While defensive medicine
provides the practitioner with a valuable legal defense in the event of a lawsuit,
it is believed to be one of the most harmful effects produced by the threat of
malpractice litigation. “The message the tort system is sending to doctors is
not so much deterrence, in terms of practicing good medicine, but more just
‘drive defensively,’ because any patient you may see may be a litigant.”
The states have legislated a variety of tort reforms designed to help lower the
economic impact of malpractice awards on the healthcare system. Out-of-
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court settlements make it difficult to evaluate the impact of these reforms on a
state-by-state basis. A wide variety of legislative enactments designed to help
lower malpractice insurance premiums by limiting malpractice awards are
reviewed here. The Medical Malpractice Center provides helpful information
on malpractice laws by state at its website
(www.malpracticecenter.com/states/).
TRIALS, VERDICTS, AND MEDIATION IN MARYLAND’S U.S.
DISTRICT COURT
Over the last decade or more, mediation has become an integral part of our
civil justice system. While undoubtedly some cases are not (and should not
be) resolved by mediation, but rather by trial, attorneys and litigants seem to
have embraced mediation as a natural part of the litigation process and a
highly satisfactory way to resolve disputes.
—Susan K. Gauvey and Heather R. Pruger, Maryland Bar Journal, July
2010
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http://www.malpracticecenter.com/states/

▸ MEDIATION AND ARBITRATION
Among the many factors contributing to the malpractice crisis is the high cost
of litigation. Trial by jury is lengthy and expensive. If case disputes can be
handled out of court, the process and expense of a lawsuit can be significantly
reduced. Mediation and arbitration are basically mechanisms for simplifying
and expediting the settlement of claims. Mediation is the process whereby a
third party, the mediator, attempts to bring about a settlement between the
parties of a complaint. The mediator, however, cannot force a settlement. The
U.S. District Court for the Southern District of New York describes mediation
as follows:
Mediation is a form of alternative dispute resolution.
In mediation, parties and counsel meet, sometimes collectively and
sometimes individually, with a neutral third party (the mediator) who
has been trained to facilitate confidential settlement discussions.
The parties articulate their respective positions and interests and
generate options for a mutually agreeable resolution to the dispute.
The mediator assists the parties in reaching their own negotiated
settlement by defining the issues, probing and assessing the strengths
and weaknesses of each party’s legal positions, and identifying areas
of agreement and disagreement.
The main benefits of mediation are that it can result in an expeditious
and less costly resolution of the litigation, and can produce creative
solutions to complex disputes often unavailable in traditional litigation.
Arbitration is the process by which parties to a dispute voluntarily agree to
submit their differences to the judgment of an impartial mediation panel for
resolution. It is used as a means to evaluate, screen, and resolve medical
malpractice disputes before they reach the courts. Arbitration can be
accomplished by mutual consent of the parties or statutory provisions. A
decision made at arbitration may or may not be binding, depending on prior
agreement between the parties or statutory requirements.
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▸ STATUTE OF LIMITATIONS
All states have precise deadlines for the filing of medical malpractice lawsuits.
These deadlines are described as the statute of limitations, which sets a limit
on the amount of time a plaintiff has to file a malpractice complaint. Time limits
vary from state to state as noted at the following website:
www.alllaw.com/articles/nolo/medical-malpractice/state-laws-statutes-
limitations.html.
Malpractice actions must be filed in a timely manner. The action filed in
Russell v. Williford was not filed in a timely manner under the statute of
limitations. Reasonable diligence should have led the plaintiff to seek a second
opinion or additional treatment much sooner when the abnormal condition in
his left leg persisted. This simple action, if taken within 1 to 2 years after
surgery instead of 27 years later, might have made the true problem with the
plaintiff’s leg known much sooner. Therefore, the plaintiff may not bring this
action now, over a quarter of a century after the alleged act or omission. To
allow the plaintiff to proceed under this set of facts on such an ancient claim
would set a dangerous precedent.
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http://www.alllaw.com/articles/nolo/medical-malpractice/state-laws-statutes-limitations.html

▸ STRUCTURED AWARDS
Structured awards are set up for the periodic partial payment of judgments
rather than paying the injured party a lump-sum payment. The purpose of a
structured award is to provide compensation during a plaintiff’s lifetime. It
eliminates the potential for an unwarranted windfall to the plaintiff’s
beneficiaries in the event of early death. Some states have sought to deal with
award limitations by mandating structured recoveries when awards exceed a
certain dollar amount.
Structured awards provide that money awarded to the plaintiff be placed in a
trust fund and invested appropriately so that the funds will be available to the
plaintiff over an extended period of time. The rationale behind such legislation
is that an immediate award of a large sum of money often is not necessary for
a plaintiff to be well taken care of after suffering injuries. Instead, the prudent
investment of a smaller amount of money can produce a recovery
commensurate with the needs and the rights of the plaintiff. This, in turn,
requires a smaller cash outlay by the defendant or the defendant’s insurance
company, thereby holding down the costs of malpractice insurance and the
ultimate cost of medical care to the consumer.
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▸ MEDICAL MALPRACTICE SCREENING PANELS
Medical malpractice screening panels are designed to evaluate the merits of
medical injury claims and encourage the settlement of claims outside the
courtroom. “Panels render an opinion on provider liability and, in some cases,
on damages. In most states, the panel’s decision on the merit of the claim is
admissible in court.” Unlike binding arbitration, the decision of a screening
panel is not binding and is imposed as a condition precedent to trial, whereas
arbitration is conducted in lieu of a trial. Mandatory screenings of alleged
negligence cases are useful in discouraging frivolous lawsuits from proceeding
to trial.
The Alaska Supreme Court, in Keyes v. Humana Hospital Alaska, held that a
statute creating mandatory pretrial review of medical malpractice claims by an
expert advisory panel did not impermissibly infringe on the plaintiff’s
constitutional right to a trial by jury. The statute was a reasonable legislative
response to the medical malpractice insurance crisis.
The constitutionality of a Virginia statute, in Speet v. Bacaj, provided that
admission of a medical review panel’s opinion into evidence did not infringe on
the plaintiff’s right to a trial by jury or impact on a jury’s function in resolving
the disputed facts in the case. The trial court jury instructions were correctly
permitted in this case, where the lower court stated, “The opinion of the
Medical Review Panel is not binding upon you. You should consider it along
with the other evidence.”
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▸ COLLATERAL SOURCE RULE
The collateral source rule is a common law principle that prohibits a court or
jury from taking into account, when setting an award, that part of the plaintiff’s
damages covered by other sources of payment (e.g., health insurance for
medical bills, disability). Several states have modified the collateral source rule
so that evidence regarding other sources of payment to the plaintiff may be
introduced for purposes of reducing the amount of the ultimate award to the
plaintiff. The jury then would be permitted to assign the evidence such weight
as it chooses. The award could be reduced to the extent that the plaintiff has
received compensation from other sources.
Imposition of the collateral source rule can result in recoveries to plaintiffs far
in excess of their economic loss. Such excessive payments contribute
significantly to the high cost of malpractice insurance and the high cost of
health care to the public. When evidence regarding collateral sources of
payment is allowed to mitigate the damages payable to a plaintiff, excessive
recoveries are discouraged.
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▸ CONTINGENCY FEE LIMITATIONS
A contingency fee is payment for services rendered by an attorney predicated
on the favorable outcome of a case. Payment is based on a preestablished
percentage of the total award. Some states set this percentage by statute.
California, in Section 6146 of the California Business and Professional Code,
“caps contingency fees at a rate of forty percent of the first $50,000 recovered,
thirty-three and one-third percent of the next $50,000 recovered, twenty-five
percent of the next $500,000, and fifteen percent on anything over $600,000.”
These are maximums, and the attorney and client are free to negotiate lower
rates. Under a contingency agreement, if there is no award to the plaintiff, the
attorney receives no payment for services rendered.
Physicians argue that the contingency fee arrangement serves to encourage
an unreasonable number of lawsuits. Attorneys reason that if they or their
clients must bear the initial cost of a lawsuit, only those lawsuits with obvious
merit will be filed. The contingency fee structure allows those unable to bear
the cost of litigation to initiate a suit for damages. Limiting contingency fees on
a sliding scale basis, with the percentage decreasing as the award to the
plaintiff increases, and/or providing for a lesser fee if a claim is settled prior to
trial, appears to have merit.
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▸ COUNTERSUITS: FRIVOLOUS CLAIMS
Healthcare providers, in some instances, have filed countersuits after being
named in what they believe to be frivolous medical malpractice suits. The
threat of countersuits, however, has not been helpful in reducing the number
of malpractice claims. Remedies for such actions vary from one jurisdiction to
the next. For a physician to prevail in a suit against a plaintiff or plaintiff’s
attorney, the physician must show the following:
1. The suit was frivolous.
2. The motivation of the plaintiff was not to recover for a legitimate injury.
3. The physician has suffered damages as a result of the suit.
It has been argued that defendants should be allowed to recover court costs
and damage awards from both the plaintiff(s) and their attorneys for frivolous
claims and counterclaims. Frivolous litigation is the practice of filing a lawsuit
that lacks legal merit and has little chance of being successful. It consists of a
claim made by the defendant(s) that there is insufficient evidence for the
plaintiff(s) to proceed with a case.
A claim or defense may be frivolous because it has no underlying justification,
either in fact or law. United States Rule 11 of the Federal Rules of Civil
Procedure and similar state rules require an attorney to perform a due
diligence investigation concerning the factual basis for a claim or defense.
Congress enacted section 1912 of Title 28 of the U.S.C., which provides that
in the U.S. Supreme Court and in the U.S. Courts of Appeals, where litigation
by the losing party has caused damage to the prevailing party, the court may
impose a requirement that the losing party must pay the prevailing party for
those damages. The costs associated with filing a lawsuit include time spent in
preparing and litigating a case, obtaining and analyzing medical records,
obtaining expert witnesses, conducting depositions, and a variety of other
costs associated with litigating a lawsuit.
In Berlin v. Nathan, a radiologist, a surgeon, and a hospital were sued for
alleged malpractice by a patient who sought $250,000 because the
defendants did not diagnose a fracture of her little finger. The radiologist
missed the break, but he claimed that it was not evident on the X-ray taken at
the hospital and that there was no error on his part. Furthermore, the finger
was placed in a splint just as if it had been broken, so the treatment was
correct regardless of the diagnosis. The radiologist countersued, so the
malpractice suit and countersuit were tried together. When the jury was
selected, the patient withdrew the malpractice suit, but the radiologist
persisted with his case. The jury awarded the radiologist $2,000 as
compensation and $6,000 in punitive damages, presumably convinced that the
patient and her attorneys acted improperly in bringing the lawsuit and that the
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attorneys were negligent in their investigation of the patient’s case before filing
suit.
When the case was taken to an appellate court, the decision of the lower court
was reversed on the grounds that the physician failed to plead special
damages and (because the countersuit had been filed prematurely) failed to
plead a favorable result in the original suit. The appellate court went on to say
that a showing of special damages is essential in a case of this type in order
that the public’s right to free access of the court system not be impeded by the
threat of counter-litigation. The court reasoned that people who believe they
have legitimate claims should not be dissuaded from using the court system
solely because of the fear of liability in the event their claim is unsuccessful.
However, a study conducted by researchers at the Harvard School of Public
Health found that “most malpractice claims are meritorious, with 97% of claims
involving medical injury. The press release from Harvard headlined: “Study
casts doubt on claims that the medical malpractice system is plagued by
frivolous lawsuits.”
The appellate court holding in the Berlin case represents the majority judicial
view across the country regarding countersuits. Courts generally do not find in
favor of the countersuing party because they fear that persons who otherwise
would bring valid malpractice suits will be discouraged simply because of a
concern over the possibility of a countersuit.
The courts, thus far, have not looked favorably on countersuits for frivolous
negligence actions. Some state legislatures have taken limited action in this
area. An Arkansas statute, for example, provides that in any civil action in
which the court finds that there was a complete absence of a judicial issue of
either law or fact raised by the losing party or his or her attorney, the court
shall award, with certain stipulations, an attorney fee in an amount not to
exceed $5,000 or 10% of the amount in controversy, whichever is less, to the
prevailing party.
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▸ JOINT AND SEVERAL LIABILITY
The doctrine of joint and several liability provides that a person causing an
injury concurrently with another person can be held equally liable for the entire
judgment awarded by a court. This has been referred to as pure joint and
several liability.
Some states have taken action to modify the doctrine by adopting a modified
joint and several liability requirement, in which the defendant “is responsible
for the entire verdict only if they are found to be at or above a specified
percentage of fault. Twenty-eight (28) states practice Modified Joint and
Several Liability (California, Colorado, Hawaii, Idaho, Illinois, Iowa, Louisiana,
Maine, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New
Hampshire, New Jersey, New Mexico, New York, North Dakota, Ohio,
Oklahoma, Oregon, South Carolina, South Dakota, Texas, Washington, West
Virginia, and Wisconsin).”
Some states require that each defendant in a multidefendant action should be
limited to payment for the percentage of fault ascribed to him or her. This has
been referred to as pure several liability. Presently, “Fourteen (14) states
practice Pure Several Liability (Alaska, Arizona, Arkansas, Connecticut,
Florida, Georgia, Indiana, Kansas, Kentucky, Michigan, Tennessee, Utah,
Vermont, and Wyoming).” A Wyoming statute, for example, provides that
each defendant to a lawsuit is liable only for that proportion of the total dollar
amount of damages according to the percentage of the amount of fault
attributed to him or her. A Minnesota statute provides that a defendant
whose fault is 15% or less may be jointly liable for a percentage of the whole
award not greater than four times his or her percentage of fault.
Fair Share Act
Governor Tom Corbett of Pennsylvania signed the Fair Share Act (42 Pa.
Cons. Stat. § 7102) in 2011, which provides for a proportionate share of
liability among joint tortfeasors and eliminates the common law doctrine of joint
and several liability. Under the law, with few exceptions, each defendant is
liable for “that proportion of the total dollar amount awarded as damages in the
ratio of the amount of that defendant’s liability to the amount of liability
attributed to all defendants and other persons to whom liability is apportioned
under subsection (a.2)” [42 Pa. Cons. Stat. § 7102(a.1)(1)].
13
14
15
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▸ MALPRACTICE CAPS
Many states have attempted to stem the tide of rising malpractice awards by
enacting laws that limit the total dollar damages allowable in malpractice
actions. Some states have placed limitations on the amount of awards in order
to discourage frivolous lawsuits. The impetus for malpractice caps is due, in
part, because jury awards often vary substantially from jurisdiction to
jurisdiction within and between states. As a result, negligence attorneys often
attempt to try personal injury cases in those jurisdictions in which a jury is
more likely to grant a higher award. Although there have been challenges to
statutes limiting awards, it would appear that limitations on malpractice
recoveries are mixed as to the constitutionally of such caps. Pennsylvania for
example does not impose caps on damages in personal injury cases unless
the case is brought against a Commonwealth agency. In fact, damages caps
are otherwise unconstitutional under the Constitution of the Commonwealth of
Pennsylvania.
The battle continues regarding the effectiveness of malpractice liability caps.
States that have such statutes in place are finding that the caps do not resolve
the issue of high malpractice insurance premiums for physicians. Although
there have been challenges to statutes limiting awards, it would appear that
limitations on malpractice recoveries are considered constitutional in some
states and unconstitutional in others, as illustrated in the following cases.
Florida. Florida caps on medical malpractice damages were determined to be
unconstitutional. The Florida Supreme Court ruled on June 8, 2017, that the
Florida caps on medical malpractice damages were unconstitutional. Susan
Kalitan had filed a lawsuit in 2008 against the North Broward Hospital District
and other defendants after undergoing carpal-tunnel syndrome surgery and
suffering a perforated esophagus during anesthesia. A jury awarded $4 million
in noneconomic damages. The amount was reduced by about $2 million
because of the caps in the 2003 law. On appeal, the 4th District Court of
Appeal ruled that the damage caps were unconstitutional. The Florida
Supreme Court upheld the 4th District Court of Appeal’s decision, which found
that the state’s malpractice caps on noneconomic damages violated the Equal
Protection Clause of the Florida Constitution.
We conclude that the caps on noneconomic damages in sections
766.118(2) and (3) arbitrarily reduce damage awards for plaintiffs who
suffer the most drastic injuries. We further conclude that because there is
no evidence of a continuing medical malpractice insurance crisis justifying
the arbitrary and invidious discrimination between medical malpractice
victims, there is no rational relationship between the personal injury
noneconomic damage caps in section 766.118 and alleviating this
purported crisis. Therefore, we hold that the caps on personal injury
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noneconomic damages provided in section 766.118 violate the Equal
Protection Clause of the Florida Constitution.
Section 766.118 sets noneconomic damages caps of $500,000 per claimant in
personal injury or wrongful death actions arising from medical negligence. The
noneconomic damages suffered by the injured patient in this case were
severe. Such an award in this case could not be constitutionally limited by
Section 766.188(2) and (3).
Idaho. The Idaho Supreme Court, in Jones v. State Board of Medicine, held
that the state’s limitation on malpractice recoveries of $150,000 is not
necessarily unconstitutional. The court also held that there was no inherent
right to an unlimited amount of damages and that the state had a legitimate
interest in controlling excessive medical costs caused by large malpractice
recoveries and, thus, the statute could be held constitutional. Idaho has raised
the limitation on noneconomic damages, such as pain and suffering, to
$250,000 under Idaho Code § 6-1603. This limitation does not apply to
economic damages such as medical expenses, and adjusts with inflation
yearly based on adjustments made by the Idaho Industrial Commission.
California. The California Supreme Court, in Fein v. Permanente Medical
Group, found that provisions in the Medical Injury Compensation Reform Act
of 1975, Section 3333.2 of the Civil Code, that limit noneconomic damages for
pain and suffering in medical malpractice cases to $250,000 are not
unconstitutional. The legislature did not place limits on a plaintiff’s right to
recover for economic damages, such as medical expenses and lost earnings
resulting from an injury. Unlike other states, California’s limitation does not
adjust with inflation, and the limitation will remain at the 1975 rates until the
law is amended. At the ballot box in 2014, California citizens voted to maintain
the $250,000 cap on noneconomic damages.
Virginia. A Virginia statute that places a cap of $750,000 on damages
recoverable in a malpractice action was found not to violate the Seventh
Amendment separation of powers principles or the Fourteenth Amendment
due process or equal protection clauses. Under Virginia Code § 8.01-581.15,
Virginia’s malpractice cap has been increasing incrementally over the years
and is as of 2015 set at $2.15 million. The malpractice cap is scheduled to rise
to $3 million by 2031. Further increases are scheduled after that date.
Illinois. In November 2006, the plaintiffs in Lebron v. Gottlieb Memorial
Hospital, Abigaile Lebron (Abigaile), a minor, and her mother, Frances Lebron
(Lebron), filed a medical malpractice and declaratory judgment action against
the defendants—the hospital, physician, and nurse. According to the
complaint, Lebron was under the care of the physician during her pregnancy.
On October 31, 2005, Lebron was admitted to the hospital, where the
physician delivered Abigaile by cesarean section. The nurse assisted in the
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delivery and provided the principal nursing care from the time of Lebron’s
admission. The plaintiffs alleged that as the direct and proximate result of
certain acts and omissions by the defendants, Abigaile sustained numerous
permanent injuries, including severe brain injury, cerebral palsy, cognitive
mental impairment, inability to be fed normally such that she must be fed by a
gastrostomy tube, and inability to develop normal neurologic function.
The plaintiffs sought a judicial determination of their rights with respect to
Public Act 94-677 and a declaration that certain provisions of the act,
applicable to the plaintiffs’ cause of action, violate the Illinois Constitution. The
plaintiffs challenged the caps on noneconomic damages contained in the act.
The plaintiffs alleged that Abigaile sustained disability, disfigurement, and pain
and suffering to the extent that damages for those injuries will greatly exceed
the applicable limitations on noneconomic damages under the Act.
The Supreme Court of Illinois agreed with the plaintiffs that the $500,000 limit
on noneconomic damages was arbitrary. Although agreeing with the
defendants that noneconomic injuries are difficult to assess, imposing an
arbitrary damages limitation in all cases, without regard to the facts, did not
alleviate such difficulty.
The defendants referred the court’s attention to statutes limiting noneconomic
damages in medical malpractice cases that have been adopted in other states.
The defendants contended that the limits on damages contained in the act are
well within the range of reasonable limits adopted by these states. The court
reviewed the statutes cited by the defendants and observed that the limitations
on noneconomic damages adopted in other states vary widely, not only in the
amount of the cap, but also regarding other specifics. “On what basis
defendants have determined that such disparate provisions are all reasonable
is not known, and it is not for the Supreme Court of Illinois to judge the
reasonableness of other states’ legislation. The ‘everybody is doing it’
mentality is hardly a litmus test for the constitutionality of the statute.”
A summary of medical malpractice damages caps, which vary from state to
state, can be found at www.nolo.com/legal-encyclopedia/state-state-
medical-malpractice-damages-caps.html. The state supreme courts of
Florida, Missouri, Georgia, Illinois, Alabama, Oregon, Washington,
and New Hampshire have overturned limits on noneconomic damages.
The Florida Supreme Court, in a 5-2 decision, held that the way the caps
reduced damages is “arbitrary and unrelated to a true state interest,” and it
“offends the fundamental notion of equal justice under the law.” The court
continued: “The statutory cap on wrongful death noneconomic damages fails
because it imposes unfair and illogical burdens on injured parties when an act
of medical negligence gives rise to multiple claimants.”
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▸ NO-FAULT SYSTEM
A no-fault system compensates injured parties for economic losses regardless
of fault. It is intended to compensate more claimants with smaller awards. A
no-fault system compensates victims of medical injury whether or not they can
prove medical negligence. Proponents of the no-fault approach cite its
advantages as providing a swifter and less expensive resolution of claims and
a more equitable compensation for patients. “While several other countries
have established a no-fault system for medical malpractice, no state has
established an across-the-board no-fault medical malpractice system. But
Florida and Virginia have established a voluntary no-fault system for children
born severely impaired because of neurologic injuries suffered during the
birthing process.”
A no-fault system of compensation does have drawbacks. Opponents of the
no-fault system are concerned about the loss of whatever deterrent effect the
present tort system exerts on healthcare providers. The system’s lower
administrative costs can be an incentive to file lawsuits and, therefore, may not
produce the desired outcome of reducing the incidence of malpractice claims.
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▸ REGULATION OF INSURANCE PRACTICES
Many believe that the regulation of insurance practices is necessary to prevent
windfall profits. Both the medical profession and the legal profession believe
that insurance carriers have raised premiums disproportionately to their losses
and that, despite their claims of substantial losses, they have reaped
substantial profits. Additional information on insurance can be found at several
websites including
www.naic.org/documents/consumer_state_reg_brief .
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▸ REDUCING THE RISKS OF MALPRACTICE
A variety of programs have been implemented to improve the quality of patient
care, reduce the incidence of medical errors, and lower malpractice insurance
premiums.
Risk Management
Risk management programs improve patient care and treatment practices,
thus reducing the number of patient injuries and thereby minimizing the
exposure of an organization to lawsuits. An effective risk management
program includes a monitoring system that identifies potential risks to patients
and staff. Liability insurers have been strong proponents of risk management
and in many cases, insurers have reduced premiums for physicians and
healthcare organizations that implement risk management programs that
include: a grievance or complaint mechanism designed to process and resolve
grievances by patients or their representatives; data collection with respect to
negative healthcare outcomes; medical care evaluation mechanisms that
include tissue review, blood utilization, and medical audit committees to
periodically assess the quality of medical care being provided; and patient
safety education programs to support staff.
Performance Improvement
There are a variety of labels ascribed to the quality improvement process,
such as continuous quality improvement (CQI) and performance improvement
(PI). CQI is the term given to the philosophy of management introduced into
the U.S. business world in 1980 by an American statistician, Dr. W. E.
Deming. Initially working in Japan, Deming was rediscovered by his own
country when an NBC news documentary entitled If Japan Can—Why Can’t
We? was broadcast on June 24, 1980. A portion of the documentary
highlighted Deming’s efforts in helping to make Japanese management and
products what some would call the best in the world. His concepts on
improving quality, however, failed to catch the immediate attention of the
business world in the United States. Through his years of research, Deming
formulated step-by-step procedures for improving quality and decreasing
costs. Since that time, there have been numerous variations on the CQI
process of improving quality. CQI comes in a diversity of packages that
contain sound business practices that have been developed over many years.
CQI involves improving performance at every functional level of an
organization’s operation, using all available resources (human and capital). It
combines fundamental management techniques, innovative improvement
efforts, and specialized technical skills in a structure focused on continuously
improving processes. CQI relies on people and involves everyone. CQI is
concerned with providing a quality product, getting to market on time,
providing the best service, reducing costs, broadening market share, and
producing organizational growth.
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Performance improvement is the terminology adopted by The Joint
Commission, which describes “the systematic process of detecting and
analyzing performance problems, designing and developing interventions to
address the problems, implementing the interventions, evaluating the results,
and sustaining improvement.” Successful PI programs require commitment
by the organization’s leadership to PI activities, regular inter- and intra-
departmental meetings between caregivers, and continuing educational
opportunities for self-improvement within and outside of the organization. PI
should be part of an organization’s culture and can be adopted by professional
organizations and specialty societies when developing best-practice
guidelines. “Many of the specialty societies either have drafted or are drafting
practice guidelines for their medical area of expertise. For example, the
American Society of Anesthesiologists developed guidelines for intra-operative
monitoring in 1986. During the following year, no lawsuits were brought for
hypoxic injuries; in previous years hypoxic injury suits averaged six per
year.”
Peer Review
Medical staff peer review is the evaluation of a physician’s work competence
and quality by his or her peers. It is a form of self-regulation and can be
accomplished internally by qualified members of an organization’s medical
staff within their respective fields of expertise. In high-profile cases, an
external group can conduct peer review activities in order to avoid giving the
perception of bias and the appearance of wrongdoing and thus provide
credibility to the process.
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▸ COLLABORATION IN TORT REFORM
Physicians and, increasingly, advanced practice practitioners (e.g., physician
assistant and nurse practitioners) are on the front lines of medicine but often
have been excluded from the decision-making processes that threaten their
autonomy and financial security. A concerted effort must be made to include
them in the process of tort reform. The present system of punishment for all
because of the inadequacies of the few has proven to be costly and
ineffective.
The medical malpractice insurance crisis continues to be a major dilemma for
the healthcare industry. Although many approaches have been taken to
resolve the crisis, there appears to be no one magic formula. The solution
most likely will require a variety of efforts, including tort reforms, some of which
have been reviewed here.
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▸ CHAPTER REVIEW
1. Mediation is the process wherein a third party attempts to bring about a
settlement between parties. Arbitration is a process wherein parties
agree to submit their differences to the judgment of an impartial
mediation panel for resolution in lieu of trial.
2. Structured awards are those placed in a trust set up to provide
compensation over a plaintiff’s lifetime.
3. Pretrial screening panels are used to encourage out-of-court
settlements. The panels give an opinion on provider liability and, in
some cases, damages.
4. The collateral source rule is a common law principle that prohibits a
court or jury, when setting an award, from taking into account that part
of the plaintiff’s damages that would be covered by other sources of
payment.
5. A contingency fee is payment for an attorney’s services predicated on
the favorable outcome of a case. Many believe that a limitation on such
fees would limit the windfall profits of attorneys, thus reducing the
economic drain on the healthcare system.
6. Some healthcare providers have filed countersuits after being named
in what they believe to be frivolous claims. The threat of such suits,
however, has not proven to be helpful in reducing the number of
malpractice claims.
7. The concept of joint and several liability holds that a person who
caused an injury concurrently with another person can be held equally
liable for the full judgment awarded by a court. Some states require
that each defendant in a multidefendant action should be limited to
payment for the percentage of fault ascribed to him or her.
8. Some states are attempting to limit the rising costs of malpractice
awards by setting malpractice caps.
9. Proponents of a no-fault approach to reducing the costs associated
with exorbitant malpractice awards cite as its advantages swifter and
less expensive resolution of claims and more equitable compensation
for patients.
10. Statutes of limitations specify the timeframe within which a lawsuit
must be commenced.
11. Reducing the risks of malpractice can be accomplished by
implementation of best practices, risk management, performance
improvement activities, and peer review.
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221

▸ REVIEW QUESTIONS
1. Describe various tort reform programs designed to lower the cost of
malpractice insurance. Should there be limits placed on malpractice
awards? Support your opinion.
2. Discuss what a structured award is and how it might reduce the costs
associated with large-sum malpractice awards.
3. Discuss which of the schemes for tort reform discussed previously you
consider most helpful in addressing the malpractice insurance crisis.
4. Describe how risk management, performance improvement, and peer
review can be helpful in improving patient care and reducing the
number of malpractice claims.
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▸ NOTES
1. Gregg Roslund, MD, “The Medical Malpractice Rundown: A State-by-State
Report,” Emergency Physicians Monthly, July 21, 2014.
2. The Robert Wood Johnson Foundation, “The Tort System for Medical
Malpractice: How Well Does It Work, What Are the Alternatives?” Abridge,
Spring 1991, 2.
3. United States District Court Southern District of New York, “What Is Mediation,”
http://www.nysd.uscourts.gov/mediation.
4. No. 2003-CA-01573-COA (Miss. Ct. App. 2004).
5. The Robert Wood Johnson Foundation, “Legal Reform,” Abridge, Spring 1991,
3.
6. 750 P.2d 343 (Alaska 1988).
7. 377 S.E.2d 397 (Va. 1989).
8. Id. at 401.
9. Eugen C. Andres and Jim Moore, “Requirements for Client Retainer
Agreements,” December 2013.
http://www.ocbar.org/AllNews/NewsView/tabid/66/ArticleId/1207/December-
2013-Requirements-for-Client-Retainer-Agreements.aspx.
10. 381 N.E.2d 1367 (1978).
11. Jack Cannon, “Frivolous Malpractice Lawsuits Uncommon: Harvard Study,”
http://www.healylawfirm.com/News-Articles/Irish-American-
News/Frivolous-Malpractice-Lawsuits-Uncommon-Harvard-Study.shtml.
12. Ark. Code Ann. § 16-22-309 (Michie 1987).
13. Matthiesen, Wickert & Lehrer, S.C., “Joint and Several Liability and
Contribution Laws in All 50 States,” Updated September 15, 2017.
https://www.mwl-law.com/wp-content/uploads/2013/03/contribution-
actions-in-all-50-states .
14. Id.
15. Wyo. Stat. § 1-1-109 (1986).
16. Minn. Stat. § 604.02 (1988).
17. North Broward Hospital District, etc., et al., Appellants, vs. Susan Kalitan, 174
So. 3d 403 (2015).
18. North Howard Hospital v. Kalitan, No. SC15-1858 (June 8, 2017).
19. 555 P.2d 399 (Idaho 1976).
20. 695 P.2d 665 (Cal. 1985).
21. Ballotpedia, “California Proposition 46, Medical Malpractice Lawsuits Cap and
Drug Testing of Doctors (2014),”
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http://www.nysd.uscourts.gov/mediation

http://www.ocbar.org/AllNews/NewsView/tabid/66/ArticleId/1207/December-2013-Requirements-for-Client-Retainer-Agreements.aspx

http://www.healylawfirm.com/News-Articles/Irish-American-News/Frivolous-Malpractice-Lawsuits-Uncommon-Harvard-Study.shtml

https://www.mwl-law.com/wp-content/uploads/2013/03/contribution-actions-in-all-50-states

https://ballotpedia.org/California_Proposition_46,_Medical_Malpractice_Lawsuits_Cap_and_Drug_Testing_of_Doctors_(2014)
22. Boyd v. Bulala, 877 F.2d 1191 (4th Cir. 1989).
23. Lebron v. Gottlieb Memorial Hospital, Docket Nos. 105741, 105745 cons., (Ill.
February 4, 2010).
24. John Chapman, “Florida medical malpractice wrongful death damage caps
overturned in state Supreme Court ruling,” April 23, 2015. https://www.hop-
law.com/florida-medical-malpractice-wrongful-death-damage-caps-
overturned-state-supreme-court-ruling/.
25. Stephen R. Clark and Kristin Weinberg, “Missouri Supreme Court Overrules 20
Years of Precedent in Holding Noneconomic Damages Cap Unconstitutional,”
January 4, 2013. http://www.fed-soc.org/publications/detail/missouri-
supreme-court-overrules-20-years-of-precedent-in-holding-
noneconomic-damages-cap-unconstitutional.
26. The Cochran Firm, “Georgia Supreme Court Overturns Medical Malpractice
Damage Cap,” http://www.cochranfirm.com/georgia-supreme-court-
overturns-medical-malpractice-damage-cap/.
27. Kevin Sack, “Illinois Court Overturns Malpractice Statute,” February 4, 2010.
The New York Times.
http://www.nytimes.com/2010/02/05/us/05malpractice.html.
28. MedicalMalpracticeLawyers.com, “Oregon Supreme Court Overturns $12M
Medical Malpractice Verdict, Applies $3M Cap,” June
17, 2016. https://www.medicalmalpracticelawyers.com/hospital-medical-
malpractice-2/oregon-supreme-court/.
29. Zachary Matzo, “Washington Medical Malpractice Laws & Statutory Rules,”
http://www.alllaw.com/articles/nolo/medical-malpractice/laws-
washington.html.
30. Medical Malpractice Center, “New Hampshire Medical Malpractice Laws,”
http://www.malpracticecenter.com/new-hampshire/.
31. Pamela Menaker, “Caps on Non-Economic Damages Held Unconstitutional,”
June 2, 2014. American Bar Association, Litigation News.
https://apps.americanbar.org/litigation/litigationnews/top_stories/060214-
non-economic-damage-caps.html.
32. Id.
33. George Coppolo and Saul Spigel, “Medical Malpractice-No-Fault Systems,”
December 8, 2003. OLR Research Report.
https://www.cga.ct.gov/2003/olrdata/ins/rpt/2003-R-0885.htm.
34. Glossary, The Joint Commission Hospital Accreditation Standards, 2017, GL–
29.
35. The Robert Wood Johnson Foundation, “Preventing Negligence,” Abridge,
Spring 1991, at 8.
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https://ballotpedia.org/California_Proposition_46,_Medical_Malpractice_Lawsuits_Cap_and_Drug_Testing_of_Doctors_(2014)

https://www.hop-law.com/florida-medical-malpractice-wrongful-death-damage-caps-overturned-state-supreme-court-ruling/

http://www.fed-soc.org/publications/detail/missouri-supreme-court-overrules-20-years-of-precedent-in-holding-noneconomic-damages-cap-unconstitutional

http://www.cochranfirm.com/georgia-supreme-court-overturns-medical-malpractice-damage-cap/

http://www.nytimes.com/2010/02/05/us/05malpractice.html

http://MedicalMalpracticeLawyers.com

https://www.medicalmalpracticelawyers.com/hospital-medical-malpractice-2/oregon-supreme-court/

http://www.alllaw.com/articles/nolo/medical-malpractice/laws-washington.html

http://www.malpracticecenter.com/new-hampshire/

https://apps.americanbar.org/litigation/litigationnews/top_stories/060214-non-economic-damage-caps.html

https://www.cga.ct.gov/2003/olrdata/ins/rpt/2003-R-0885.htm

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© Orguz Dikbakan/Shutterstock
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CHAPTER 6
Criminal Aspects of Health Care
IT’S YOUR GAVEL…
WRONGFUL ADMINISTRATION OF CHEMOTHERAPY
The physician in the United States v. Moon was convicted by a trial court for
healthcare fraud and making false statements regarding the administration
of partial doses of chemotherapy medications to patients. These actions
resulted in placing patients at risk of death or serious bodily harm. The
physician was billing Medicaid and other insurance programs for full doses
of the medications. The defendant-physician appealed the trial court’s
decision. At sentencing, the district court considered testimony from family
members of deceased patients. The various families testified that their loved
ones suffered emotional harm as a result of not knowing whether or not the
medications administered were wrongfully administered. The defendant
contended that the testimony of the patients’ relatives was not “relevant”
because they were not “victims” of the offenses for which the defendant was
convicted.
WHAT IS YOUR VERDICT?
Laws are made to restrain and punish the wicked; the wise and good
do not need them as a guide, but only as a shield against rapine and
oppression; they can live civilly and orderly, though there were no law in the
world.
—John Milton (1608–1674)
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▸ LEARNING OBJECTIVES
The reader, upon completion of this chapter, will be able to:
Explain what criminal law is, its main objectives, and the classification
of crimes.
Describe the criminal procedure process from arrest through trial.
Describe several of the more common crimes that occur in the
healthcare setting.
Criminal law is society’s expression of the limits of acceptable human and
institutional behavior. A crime is any social harm defined and made punishable
by law. The objectives of criminal law are as follows:
Maintain public order and safety.
Protect the individual.
Use punishment as a deterrent to crime.
Rehabilitate the criminal for return to society.
A crime is also defined as “any act which the sovereign has deemed contrary
to the public good; a wrong which the government has determined is injurious
to the public and, hence, prosecutable in a criminal proceeding.” Crimes are
generally classified as misdemeanors or felonies. The difference between a
misdemeanor and a felony is the severity of the crime. A misdemeanor is an
offense punishable by less than 1 year in jail and/or a fine (e.g., petty larceny).
A felony is a much more serious crime (e.g., rape, murder) and is generally
punishable by imprisonment in a state or federal penitentiary for more than 1
year.
Criminal law has been seen as a system of regulating the behavior of
individuals and groups in relation to societal norms, whereas civil law is aimed
primarily at the relationships between private individuals and their rights and
obligations under the law.
Particular to healthcare organizations is the fact that patients are often
helpless and at the mercy of others. Healthcare facilities are far too often
places where the morally weak and mentally deficient prey on the physically
and sometimes mentally helpless. The very institutions designed to make the
public well and feel safe can sometimes provide the setting for criminal
conduct. As a result, the U.S. Department of Justice and state prosecutors
vigorously pursue and prosecute healthcare organizations and individuals for
criminal conduct. There is a zero-tolerance policy for healthcare fraud, patient
abuse, and other such crimes. Healthcare professionals must be observant of
the actions of others and report suspicious conduct. In an effort to provide the
reader with a review of criminal law as it applies to the healthcare industry, this
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chapter presents the procedural aspects of criminal law, as well as an
overview of criminal cases that have occurred in healthcare facilities.
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▸ CRIMINAL PROCEDURE
Criminal procedure regulates the process for addressing violations of criminal
law. The following sections provide an overview of criminal procedure and the
process for the prosecution of misdemeanors and felonies.
Arrest
Prosecution for a crime generally begins with the arrest of a person by a police
officer or with the filing of a formal action in a court of law and the issuance of
an arrest warrant or summons. On arrest, the suspect is taken to the
appropriate law enforcement agency for processing and booking, which
includes paperwork and fingerprinting. The police also prepare and file
accusatory statements, such as a misdemeanor information and felony
complaints, with the appropriate jurisdiction. When necessary, one or more
detectives may be assigned to a case to gather evidence, interview both
persons suspected of committing a crime and witnesses to a crime, and assist
in preparing a case for possible trial. After processing has been completed, the
person is either detained or released on bond. If the alleged offense is
classified as a felony, the U.S. Constitution requires that the case be referred
to a grand jury for an indictment. An indictment is the official charging
instrument accusing the defendant of criminal conduct.
A prosecuting attorney represents the interests of the state, and a defense
attorney represents the interests of the defendant. Although the specific
process varies according to local law, in virtually every jurisdiction, unless a
guilty plea has been accepted by the court, the process culminates with a trial.
The defendant can appeal a lower court’s decision by appealing to a higher
court.
Criminal statutes spell out the specific elements that must be proven to
constitute a criminal act. Unless the prosecuting authority proves all the
elements of a particular crime, the defendant is not guilty of the offense
charged. In a criminal case, the three general elements that must be
established are as follows:
1. The act itself is a criminal act, known as actus reus or the guilty act.
2. The intent to commit the criminal act provides the requisite mental
state, or the mens rea.
3. The attendant or surrounding circumstances of the crime demonstrate
that the crime was committed by the defendant.
Arraignment
The arraignment is a formal reading of the accusatory instrument (a generic
term that describes a variety of documents, each of which accuses the
defendant of an offense) and includes the setting of bail. The accused should
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appear with counsel or have counsel appointed by the court if he or she
cannot afford an attorney. After the charges are read, the defendant pleads
guilty or not guilty as charged. A not guilty plea is normally offered on a felony
complaint. On a plea of not guilty, the defense attorney and prosecutor
formulate arguments to the judge when setting bail. After arraignment of the
defendant, the judge sets a date for the defendant to return to court. Between
the time of arraignment and the next court date, the defense attorney and the
prosecutor confer about the charges and the evidence in the possession of the
prosecutor. The defense will at that time offer mitigating circumstances in an
attempt to negotiate with the prosecutor to reduce or drop the charges.
Indictment
A felony complaint or grand jury indictment commences a criminal proceeding.
The accused can be tried for a felony after a grand jury indictment (EXHIBIT
6-1). The defendant can waive presentment to the grand jury and plead guilty
by relinquishing his rights to a grand jury hearing and proceed to trial by jury.
During a grand jury hearing, the prosecution presents evidence, which may
lead to an indictment of the target if the grand jury finds reasonable cause to
believe from the evidence presented that all the elements of a particular crime
are present. The grand jury may request that witnesses be subpoenaed to
testify. A defendant may choose to testify and offer information if he or she
wishes. Actions of a grand jury are handed up to a judge, after which the
defendant is notified to appear to be arraigned for any crimes charged in the
indictment.
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EXHIBIT 6-1 Report of the grand jury.
Reproduced from Grand Jury Women’s Medical,
http://www.phila.gov/districtattorney/pdfs/grandjurywomensmedical
Conference
If the defendant does not plead guilty, both felony and misdemeanor cases are
taken to conference, and plea-bargaining commences with the goal of an
agreed upon disposition. If a disposition cannot be reached, the case is
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http://www.phila.gov/districtattorney/pdfs/grandjurywomensmedical

adjourned, motions are made, and further plea-bargaining takes place. After
several adjournments, a case may be assigned to a trial court.
Criminal Trial
Most of the processes of a criminal trial are similar to those of a civil trial. They
include jury selection, opening statements, presentation of witnesses and
other evidence, summations, instructions to the jury by the judge, jury
deliberations, verdict, and opportunity for appeal to a higher court. In a criminal
trial, the jury verdict must be unanimous, and the standard of proof is that guilt
must be proven beyond a reasonable doubt, whereas in a civil trial, the plaintiff
need only prove a claim by a preponderance of the evidence.
Criminal History and False Statements
The record in Hoxie v. Ohio State Med. Bd. indicated that the physician had
made false statements concerning his criminal history when he stated in a
deposition that he had never been arrested. There was, however, sufficient
evidence presented to support permanent revocation of his license to practice
medicine. Certified records held by the state of California indicated that the
physician had been arrested or detained by the Los Angeles Police
Department multiple times in the 1970s and 1980s for possessing marijuana
and phencyclidine piperidine (PCP), driving under the influence of alcohol
and/or drugs, and driving with a suspended license. Although the physician
asserted that documentation of his criminal past had been fabricated by police
and was not credible, law enforcement investigation reports were generally
admissible. The physician himself added to the reliability of the records by
verifying all significant identifying information contained within the documents
and records.
Prosecutor
The role of the prosecutor in the criminal justice system is well defined in
Berger v. United States:
The United States Attorney is the representative not of an ordinary party to
a controversy, but of a sovereignty whose obligation to govern impartially is
as compelling as its obligation to govern at all; and whose interest,
therefore, in a criminal prosecution is not that it shall win a case, but that
justice will be done. As such, he is in a peculiar and very definite sense the
servant of the law, the twofold aim of which is that guilt shall not escape or
innocence suffer.
The potential of the prosecutor’s office is not always fully realized in many
jurisdictions. In many cities, the combination of the prosecutor’s staggering
caseload and small staff of assistants prevents sufficient attention from being
given to each case.
Defense Attorney
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The defense attorney generally sits in the proverbial hot seat, being perceived
as the bad guy. Although everyone seems to understand the attorney’s
function in protecting the rights of those represented, the defense attorney
often is not the most popular person in the courtroom.
There is a substantial difference in the problem of representing the “run-of-
the-mill” criminal defendant and one whose alleged crimes have aroused
great public outcry. The difficulties in providing representation for the
ordinary criminal defendant are simple compared with the difficulties of
obtaining counsel for one who is charged with a crime, which by its nature
or circumstances incites strong public condemnation.
Criminal trials involving healthcare professionals and organizations often
involve healthcare fraud, kickbacks, tampering with drugs, illegal use and sale
of drugs, falsification of records, patient abuse, criminal negligence,
manslaughter, murder, rape and sexual assault, and theft. Each of these
criminal offenses is reviewed in the following paragraphs.
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▸ HEALTHCARE FRAUD
Healthcare fraud involves an unlawful act, generally deception for personal
gain. It encompasses an array of irregularities and illegal acts characterized by
intentional deception. Healthcare fraud continues to be a major financial drain
on the healthcare system. The primary agency for exposing and investigating
healthcare fraud is the Federal Bureau of Investigation (FBI), with jurisdiction
over both federal and private insurance programs.
The Bureau seeks to identify and pursue investigations against the most
egregious offenders involved in health care fraud through investigative
partnerships with other federal agencies, such as Health and Human
Services-Office of Inspector General (HHS-OIG), Food and Drug
Administration (FDA), Drug Enforcement Administration (DEA), Defense
Criminal Investigative Service (DCIS), Office of Personnel Management-
Office of Inspector General (OPM-OIG), and Internal Revenue Service-
Criminal Investigation (IRS-CI), along with various state Medicaid Fraud
Control Units and other state and local agencies.
Moreover, the Health Insurance Portability and Accountability Act of 1996
(HIPAA) provides for criminal and civil enforcement tools and funding
dedicated to the fight against healthcare fraud. The Act requires the U.S.
Attorney General and the U.S. Secretary of the Department of Health and
Human Services (DHHS), acting through the Office of Inspector General
(OIG), to establish a coordinated national healthcare fraud and abuse control
program. The program provides a national framework for federal, state, and
local law enforcement agencies; the private sector; and the public to fight
healthcare fraud. Since its establishment in 1976, “OIG has been at the
forefront of the Nation’s efforts to fight waste, fraud and abuse in Medicare,
Medicaid and more than 100 other HHS programs. HHS-OIG is the largest
inspector general’s office in the Federal Government, with approximately
1,600 dedicated to combating fraud, waste and abuse and to improving the
efficiency of HHS programs.”
LARGEST HEALTH CARE FRAUD…
National Health Care Fraud Takedown Results in Charges Against over
412 Individuals Responsible for $1.3 Billion in Fraud Losses
Largest Health Care Fraud Enforcement Action in Department
of Justice History
Attorney General Jeff Sessions and Department of Health and Human
Services (HHS) Secretary Tom Price, MD, announced today the largest ever
health care fraud enforcement action by the Medicare Fraud Strike Force,
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involving 412 charged defendants across 41 federal districts, including 115
doctors, nurses, and other licensed medical professionals, for their alleged
participation in health care fraud schemes involving approximately $1.3
billion in false billings. Of those charged, over 120 defendants, including
doctors, were charged for their roles in prescribing and distributing opioids
and other dangerous narcotics. Thirty state Medicaid Fraud Control Units
also participated in today’s arrests. In addition, HHS has initiated
suspension actions against 295 providers, including doctors, nurses, and
pharmacists.
— Department of Justice, Justice News, July 13, 2017
The DHHS and the Department of Justice (DOJ) in 2009 created the Health
Care Fraud Prevention and Enforcement Action Team (HEAT). With its
creation, the fight against Medicare fraud became a Cabinet-level priority. The
HHS Secretary and the Attorney General direct HEAT’s work. By 2015, HEAT
coordinated a national healthcare fraud takedown that uncovered $712 million
in fraudulent billing.
The Department of Justice Health and Human Services Medicare Fraud Strike
Force is a multiagency team of federal, state, and local investigators that is
designed to combat Medicare fraud. Medicare fraud is estimated to cost the
nation $80 billion annually. The success of cooperation of agencies on the
federal and state levels was evident when the Medicare Fraud Strike Force in
2011 charged 111 defendants in 9 cities, including doctors, nurses, healthcare
company owners and executives, and others, for their alleged participation in
Medicare fraud schemes involving more than $225 million in false billing.
The Obama administration in July 2012 announced the formation of a public-
private partnership to aid in the prevention of healthcare fraud among the
federal government, state officials, several leading private health insurance
organizations, and other healthcare antifraud groups. The partnership is
designed to share information and best practices in order to improve detection
and prevent payment of fraudulent healthcare billings.
Attorney General Loretta E. Lynch and HHS Secretary Sylvia Mathews Burwell
announced in 2016 that a “nationwide sweep led by the Medicare Fraud Strike
Force in 36 federal districts, resulting in criminal and civil charges against 301
individuals, including 61 doctors, nurses and other licensed medical
professionals, for their alleged participation in health care fraud schemes
involving approximately $900 million in false billings.” The message is clear
that those involved in healthcare fraud are being vigorously pursued. The
public has been encouraged to report suspected Medicare fraud by calling 1-
800-HHS-TIPS (1-800-447-8477) or TTY: 1-800-377-4950.
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The federal government’s initiative to investigate and prosecute healthcare
organizations for criminal wrongdoing has resulted in the establishment of
corporate compliance programs for preventing, detecting, and reporting
criminal conduct. An effective corporate compliance program should include:
1. Developing appropriate policies and procedures
2. Appointing a compliance officer to oversee the compliance program
3. Communicating the organization’s compliance program to employees
4. Providing for monitoring and auditing systems that are designed to
detect criminal conduct by employees and other agents
5. Publicizing a reporting system whereby employees and other agents
can report criminal conduct by others within the organization without
fear of retribution
6. Taking appropriate steps to respond to criminal conduct and to prevent
similar offenses
7. Periodically reviewing and updating the organization’s corporate
compliance program
8. Working with state and federal law enforcement and regulatory
agencies and insurance companies to detect, prevent, and prosecute
healthcare fraud
As noted in the following remarks by former Attorney General Eric Holder,
healthcare fraud continues to present significant risks to patient health and is a
financial drain on the healthcare system, leading to higher costs for legitimate
care.
We are here to announce that Johnson & Johnson and three of its
subsidiaries have agreed to pay more than $2.2 billion to resolve criminal
and civil claims that they marketed prescription drugs for uses that were
never approved as safe and effective—and that they paid kickbacks to both
physicians and pharmacies for prescribing and promoting these drugs.
• • •
Put simply, this alleged conduct is shameful and it is unacceptable. It
displayed a reckless indifference to the safety of the American people. And
it constituted a clear abuse of the public trust, showing a blatant disregard
for systems and laws designed to protect public health.
• • •
This settlement demonstrates that the Departments of Justice and Health
and Human Services—working alongside a variety of federal, state, and
local partners—will not tolerate such activities. No company is above the
law. And my colleagues and I are determined to keep moving forward—
guided by the facts and the law, and using every tool, resource, and
authority at our disposal—to hold these corporations accountable, to
safeguard the American people, and to prevent this conduct from
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Schemes to Defraud
A defendant is guilty of a scheme to defraud when he or she engages in a
scheme constituting a systematic, ongoing course of conduct with intent to
defraud more than one person or to obtain property from more than one
person by false or fraudulent pretenses, representations, or promises, and so
obtains property from one or more of such persons. To show intent in a
scheme to defraud, one needs to establish the following three elements:
1. That on or about (date), in the county of (county), the defendant
(defendant/s name) engaged in a scheme constituting a systematic
ongoing course of conduct.
2. That the defendant did so with intent to defraud more than one person
or to obtain property from more than one person by false or fraudulent
pretenses, representations, or promises.
3. That the defendant so obtained property from one or more of such
persons, at least one of whom has been identified.
Schemes to defraud come in many forms, such as when $12 million in
Medicaid funds were fraudulently used in the names of the deceased, where
“The Illinois Medicaid program paid an estimated 12 million for medical
services for people listed as the deceased in other state records, according to
the internal state government memo . . . Auditors identified overpayments for
services to roughly 2,900 people after the date of their deaths.”
Healthcare fraud is committed when a dishonest provider or consumer
intentionally submits or causes someone else to submit false or misleading
information for use in determining the amount of healthcare benefits payable.
Some examples of provider healthcare fraud include the following:
Billing for services not rendered
Falsifying a patient’s diagnosis to justify tests, surgeries, or other
procedures that are not medically necessary
Misrepresenting procedures performed to obtain payment for
noncovered services, such as cosmetic surgery
Upcoding services (billing for a more costly service than the one
actually performed)
Upcoding medical supplies and equipment (billing for more expensive
equipment than what was delivered to the patient)
Unbundling (billing each stage of a procedure as if it were a separate
procedure)
Billing for unnecessary services (services that are not medically
indicated)
Accepting kickbacks for patient referrals
Waiving patient co-pays or deductibles
Overbilling the insurance carrier or benefit plan
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There are many examples of healthcare fraud, and some of the most
egregious are described next.
Fraud Results in 45-Year Prison Sentence
The U.S. Supreme Court refused to hear the appeal of Dr. Farid Fata, who
was convicted of running a scheme that involved billing the government for
medically unnecessary cancer and blood treatments. As a result of his scheme
to defraud the government, and harm patients in the process, he will spend the
next 45 years in prison.
The defendant, Farid Fata, was a physician who intentionally misdiagnosed
no fewer than 553 of his patients with cancer and other maladies they did
not have, then administered debilitating treatments, noxious chemicals,
and invasive tests—including chemotherapy, intravenous iron, and PET
scans—they did not need. For this reprehensible conduct, Fata received no
less than $17 million in ill-gotten payments from Medicare and other
insurers. The district court accurately described Fata’s conduct as “a huge,
horrific series of criminal acts.”
Healthy Dose of Fraud
Patients were allegedly brought to California where they were paid to undergo
surgeries that they did not need.
In the scam, agents say, recruiters bring “patients” from across the nation
to surgery centers in California where they give phony or exaggerated
symptoms and doctors perform unnecessary operations on them. Then the
surgery centers send inflated claims for the unnecessary procedures to the
patients’ insurance companies. When the insurers pay up, federal
authorities say, the recruiters, the surgery centers and the patients split the
proceeds.
Individuals and corporate entities are continuously bombarding the public with
fraudulent activities. Fraud has become so rampant that it has led to a decline
of trust in corporate leadership.
Medicare and Medicaid Fraud
The jury in United States v. Raithatha convicted the defendant for making
false statements and scheming to defraud. The defendant, sentenced to 27
months of imprisonment, appealed his conviction and sentence.
The indictment filed against the defendant included charges for instructing
billing staff to raise the Current Procedural Terminology (CPT) code on
invoices when the physician actually provided a lower cost service; submitting
invoices to insurance companies for services performed by other physicians,
as if the defendant had performed them; submitting claims with a diagnosis
listing an illness, when the patient did not have an illness; and causing patients
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to present themselves for medically unnecessary visits by refusing to authorize
refills on prescriptions.
Charges also included making unannounced home visits to patients;
approaching people on the street and ushering them into the clinic for
unscheduled examinations; examining people who had come into the clinic for
nonmedical reasons, such as to pay debts owed to the defendant; ordering
medical tests not related to patients’ conditions; falsely representing that other
physician employees had specialties so that patients would be examined an
additional time by a specialist; and refusing to provide test results until a
follow-up appointment was scheduled and kept.
The defendant also was charged with defrauding Medicare/Medicaid by
submitting a cost report for 1997 that included personal expenses unrelated to
patient care (e.g., money that was actually spent to furnish and complete the
defendant’s home).
The defendant, on appeal, argued that there was insufficient evidence to
sustain his conviction for defrauding or attempting to defraud. The defendant’s
staff members testified that the defendant instructed them to bill office visits
covered by private insurance under CPT codes 99213 or 99203, regardless of
the CPT code entered by the attending physician on the encounter form. Staff
members were aware of the “up-coding” scheme, which resulted in higher
reimbursement for the physician.
In addition, staff members testified that the defendant routinely ordered tests
unrelated to his patients’ conditions and supported the tests with false
diagnoses. Zeren, a nurse practitioner working at the McKee Clinic, testified
that after she performed sports physicals on children at local schools and
found no indication of upper respiratory infections, the defendant, who had not
been present at the examinations, falsely diagnosed them as having upper
respiratory infections. A reasonable juror could have reasonably found the
defendant physician guilty of defrauding or attempting to defraud
Medicare/Medicaid. The conviction and sentence of the district court was
affirmed.
False Medicaid Claims
In United States v. Larm, a physician and his office manager were convicted
on charges that they violated 42 U.S.C. § 139h(a)1 by submitting false
Medicaid claims for medical services they never rendered to patients. Claims
sometimes were submitted even when patients administered allergy injections
themselves. In addition, more expensive serums were billed instead of the less
expensive serums that were actually administered.
Home Care Fraud
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Today, more Americans are living longer than ever before. As medicine has
advanced, the average life expectancy has increased by 50%. There is an
ever-increasing number of seniors receiving in-home care who are dependent
on family and healthcare providers to attend to their physical, financial,
emotional, and healthcare needs. Medicare home health benefits allow
individuals with restricted mobility to remain at home, instead of in an
institutional setting, by providing home care benefits. Home care services and
supplies are generally provided by nurses, home nursing aides, speech
therapists, and physical therapists under a physician-certified plan of care.
Home care is rapidly being recognized as a breeding ground for abuse. The
numerous scams in home care fraud are caused by the difficulty in supervising
services provided in the home, Medicare’s failure to monitor the number of
visits per patient, beneficiaries paying no co-payments except for medical
equipment, and the lack of accountability to the patient by failing to explain
services provided.
Home care fraud generally is not easy to detect. It involves charging insurers
for more services than patients received, billing for more hours of care than
were provided, falsifying records, and charging higher nurses’ rates for care
given by aides. The trend toward shorter hospital stays has created a
multibillion-dollar market in home care services. This new market is providing
opportunities for fraud.
Fraudulent Billing for Laboratory Tests
The Court of Appeals of Georgia in Culver v. State found that a reasonable
fact finder could conclude that the physician (Kell) maintained control over the
laboratory and its Medicaid billings and received significant payments from the
laboratory. The trier of fact (jury or judge as chosen by the defendant) also
could find that although Medicaid paid the laboratory approximately $200 for
each urine test conducted, the laboratory routinely charged self-pay patients
$19.20 for what the laboratory employees described as the same test.
Regulations prohibit providers from billing Medicaid for an amount greater than
the lowest price routinely offered to the general public for the same service or
item on the same date of service.
Physician Bills for Services Not Rendered
A physician in State v. Cargille was found to have submitted false
information for the purpose of obtaining greater compensation than was
otherwise permitted under the Medicaid program. Sufficient evidence was
presented to sustain a conviction of Medicaid fraud. The physician argued that
he felt justified for multiple billings for single office visits because of the actual
amount of time that he saw a patient. He believed that his method of
reimbursement was more equitable than Medicaid. The court disagreed with
the physician’s reasoning.
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Pharmacist Submits False Drug Claims
The pharmacist in State v. Heath submitted claims for reimbursement on
brand-name medications rather than on the less expensive generic drugs that
were actually dispensed. A licensed pharmacist and former employee of the
defendant contacted the Medicaid Fraud Unit of the Louisiana Attorney
General’s office and reported the defendant’s conduct in substituting generic
drugs for brand-name drugs. As a result of the complaint, the Medicaid Fraud
Unit conducted a call out, in which the unit sent letters to Medicaid recipients
in the pharmacy’s surrounding area:
In a recipient call out, the Medicaid Fraud Unit sends letters to Medicaid
recipients in the general area of the pharmacy involved and asks them to
bring all their prescription drugs to the welfare office on a specific date. The
call out revealed that some of the prescription vials issued by the aforesaid
pharmacies contained generic drugs while the labels indicated that they
should contain brand-name drugs.
The pharmacist eventually was convicted on three counts of Medicaid fraud.
Inaccurate Records and Controlled Drugs
The operator of a pharmacy, in a disciplinary proceeding before the California
Board of Pharmacy, was found negligent because of inaccurate record
keeping. The pharmacist failed to keep accurate records of dangerous
drugs, report thefts by employees, and report a burglary of pharmacy drugs.
Such reporting is required by state statute.
Nursing Facility Stockholder Falsifies Records
The principal stockholder of a nursing home corporation in Chapman v. United
States, Department of Health and Human Services was convicted of making
19 false line-item cost entries in reports to the Kansas Medicaid agency. The
record shows that Chapman acted deliberately to submit false data to the
Kansas Medicaid agency so that nursing homes owned by him would be
reimbursed for goods and services they did not provide. When an audit was
scheduled that threatened to reveal the false claims, Chapman prepared false
invoices and had checks issued, but not signed, in an effort to cover up the
discrepancies that the state audit would reveal.
The U.S. Court of Appeals found that the DHHS did not act unreasonably
when it imposed a $2,000 penalty for each of the false Medicaid claims and
proposed an additional settlement of $118,136 even though the state already
had recovered the $21,115 in excessive reimbursement by setoff. The court
concluded, “The penalty reflects a fair amount of leniency on the part of the
Inspector General and the Administrative Law Judge (ALJ).”
Inflating Insurance Claims
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The North Carolina Court of Appeals held that a chiropractor’s license was
properly suspended for 6 months in Farlow v. North Carolina State Board of
Chiropractic Examiners for inflating the insurance claims of victims of an
automobile accident. Dr. Farlow prescribed a course of treatment for several
patients that was not justified by the injuries they received. Instead, the
treatment was prescribed to inflate insurance claims.
Fraudulent Billing
The physician in Richstone v. Novello was found to have willfully filed false
reports, practiced with negligence on more than one occasion, practiced
fraudulently, failed to maintain adequate records, and performed unnecessary
medical tests and treatments. The physician was found to be morally unfit to
practice medicine as well as unsuitable for retraining or probation. A hearing
committee of the state decided to revoke the physician’s license. The
physician challenged the committee’s actions.
Given evidence that the physician was found to have engaged in fraudulent
billing, attempted to coerce a patient into dropping her complaint with the
department of health, denied patients timely access to their records,
performed substandard follow-up procedures, ordered excessive and
medically unnecessary tests on patients, and falsified his application for
reappointment to the hospital’s medical staff, the Supreme Court, Appellate
Division declined to disturb the hearing committee’s decision to revoke the
physician’s license.
Abuse in Prescribing Controlled Substances
Evidence was sufficient in United States v. Merrill to support a doctor’s
convictions for deaths resulting from healthcare fraud and the use of narcotics
prescribed outside the course of professional practice in violation of the
controlled substance act, where the record indicated that the doctor had
written more than 33,000 prescriptions for controlled substances during the 3.5
years prior to his arrest. Furthermore, even if the patients who died had other
substances in their systems, such as alcohol or illicit drugs, the medical
examiner, who performed the autopsies on each of the patients, testified that
the drugs of the same type as prescribed by the defendant were the cause of
death.
Fraud and Ethics
Behind every act of healthcare fraud lies a lapse in ethics. One particular type
of fraud occurs when physicians refer their patients to hospitals and ancillary
healthcare providers when the physician has a financial interest in the provider
to which the patient has been referred. The ethical risks inherent in physician
self-referral were first noted in a 1986 Institute of Medicine study and again in
a 1989 HHS Inspector General study. The 1989 study concluded that
physicians who owned or invested in independent clinical laboratories referred
Medicare patients for 45% more laboratory services than did physicians
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without financial interests. It was in 1989 that the Ethics and Patient Referrals
Act was enacted, prohibiting unethical referrals, which were further defined in
1991 when the American Medical Association (AMA) Council on Ethical and
Judicial Affairs concluded that physicians should not refer patients to a
healthcare facility in which they have a financial interest and do not directly
provide services. In the following year, the AMA House of Delegates voted to
declare self-referral unethical in most instances.
The Omnibus Budget Reconciliation Act of 1989 (effective January 1, 1992)
backed the AMA’s position on self-referral, barring the referral of Medicare
patients to clinical laboratories by physicians who have, or whose family
members have, a financial interest. The scope of the ban on self-referral was
expanded with the enactment of the Omnibus Reconciliation Act of 1993
(effective January 1, 1995), which added 10 additional designated health
services: physical therapy; occupational therapy; radiology services; radiation
therapy services and supplies; durable medical equipment and supplies;
parenteral and enteral nutrients, equipment, and supplies; orthotics,
prosthetics, and prosthetic devices and supplies; home health services;
outpatient prescription drugs; and inpatient and outpatient hospital services.
The 1993 law also expanded and clarified exceptions and applied the referral
limits to Medicaid.
Anti-kickback laws require proof of “knowing” and “willful” illegal remuneration
(i.e., bribes or rebates) for patient referrals. Such conduct is illegal and can
result in criminal sanctions. If an improper financial relationship exists, a loss
of Medicare payment or a civil fine may serve as punishment. Because of the
law’s preventive nature, it has been highly effective in protecting the Medicare
and Medicaid programs’ integrity by motivating healthcare professionals to
proactively comply with the law and to avoid financial arrangements that may
unethically lead to substantial increases in use of service.
Unethical Pay to Referring Physicians
In United States v. Greber, an osteopathic physician violated the Omnibus
Budget Reconciliation Act when he unethically paid referring physicians after
rendering services. The defendant, board certified in cardiology, was president
of Cardio-Med, Inc., an organization that he founded. The company provided
physicians with diagnostic services, one of which was Holter monitoring, a
method of recording a patient’s cardiac activity on tape, generally for a period
of 24 hours. Cardio-Med billed Medicare for the monitoring service and, when
payment was received, forwarded a portion to the referring physician. The
government charged that the referral fee exceeded that permitted by Medicare
and that there was evidence the physician received interpretation fees even
though the defendant actually evaluated the monitoring data. After a trial by
jury, the physician was convicted on 20 of 23 counts in an indictment charging
mail fraud, Medicare fraud, and false statements. On appeal, the physician
contended that the evidence was insufficient to support the guilty verdict. The
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court of appeals held that to the extent that payments made to the physician
were made to induce referrals by that physician of Medicare patients to use
payer laboratory services, Medicare fraud was established.
Physicians Victims of Fraud
Physicians are not immune from being the victims of fraud. The detection,
investigation, and prosecution of financial crimes against physicians are not
uncommon occurrences. They involve such areas as computer billing crime,
bookkeeper/office manager theft, insurance fraud, cash larceny, checkbook
scams, and patient record tampering.
Physicians should be aware of how to analyze larcenous transactions, identify
embezzled funds, and recognize the criminal employee. Physicians should be
wary of bookkeepers who make themselves appear indispensable because of
their perceived ability to operate the office computer system. To avoid being
victimized by employee fraud, physicians should do the following:
Familiarize themselves with patient billing and recordkeeping practices.
Avoid having one individual in charge of billing and collection
procedures.
Arrange for an annual audit of office procedures and records by an
outside auditor.
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▸ KICKBACKS
The Medicare and Medicaid Patient Protection Act of 1987, as amended (42
U.S.C. §1320a-7b; the “Anti-Kickback Statute”), provides for criminal penalties
for certain acts impacting Medicare and state healthcare (e.g., Medicaid)
reimbursable services. The Anti-Kickback Statute, as amended, prohibits
certain solicitations or receipt of remuneration. The statute penalizes anyone
who knowingly and willfully solicits, receives, offers, or pays anything of value
as an inducement for referring an individual to a person for the furnishing or
arranging for the furnishing of any item or service payable under the Medicare
or Medicaid programs; and purchasing, leasing, or ordering or arranging for or
recommending purchasing, leasing, or ordering any good, facility, service, or
item payable under the Medicare or Medicaid programs.
The OIG investigates violations of the Medicare and Medicaid Anti-Kickback
Statute. Violators are subject to criminal penalties or exclusion from
participation in the Medicare and Medicaid programs. The OIG specifically
targets four billing practices: claims for services not provided, claims for
beneficiaries not homebound, claims for visits not made, and claims for visits
not authorized by a physician.
Laboratory Kickback
In the case of United States v. Kats, the owner of Tech Diagnostic Medical
Lab (Tech-Lab) agreed to kick back 50% of the Medicare payments received
by Tech-Lab as a consequence of referrals from Total Health Care, a medical
service company. Under the scheme, Total Health Care collected blood and
urine samples from medical offices and clinics in southern California and sent
them to Tech-Lab for testing. Tech-Lab billed Total Health Care, which in turn
billed the private insurance carrier or the government-funded insurance
programs Medi-Cal and Medicare for reimbursement. Tech-Lab then kicked
back half of its receipts to Total Health Care. The owners of Tech-Lab and
Total Health Care arranged an identical scheme with a community medical
clinic; Kats, the appellant, subsequently purchased a 25% interest in the clinic
and began collecting payments under the scheme. Kats was convicted of
conspiracy to commit Medicare fraud and of receipt of kickbacks in exchange
for referral of Medicare patients. He appealed the decision. The court of
appeals, however, affirmed the charges against him.
Architectural Contract Kickback
In United States v. Thompson, a jury convicted three members of a county
council, which served as the governing body of a county hospital, for soliciting
and receiving $6,000 in kickbacks from architects. The architects testified that
the appellants and others sought a 1% kickback on a hospital project, financed
by federal funds, in return for being awarded the architectural contract. Mr.
Galloway, of the architectural firm of Galloway and Guthrey, delivered $6,000
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to appellant Campbell at the Knoxville airport. The architects had informed the
FBI, and an investigation was conducted. After the investigation, indictments,
and trial by jury, the defendants were each sentenced to 1 year in prison. On
appeal, the U.S. Court of Appeals for the Sixth Circuit held that the receipt of a
kickback constituted an overt act in furtherance of a conspiracy to obstruct
lawful government function and was a violation of the general conspiracy
statute and a crime against the United States. It had been previously observed
that “[t]o conspire to defraud the United States means primarily to cheat the
government out of property or money, but it also means to interfere with or
obstruct one of its lawful governmental functions by deceit, craft or trickery, or
at least by means that are dishonest.” Proof that part of the architects’ fee
was reimbursed with federal funds was not necessary for a conviction. The
criminal convictions were affirmed.
Ambulance Service Kickback
In United States v. Bay State Ambulance and Hospital Rental Services, a
city official was convicted in a federal district court for conspiring to commit
Medicare fraud along with other defendants who were also convicted of
making illegal payments. Bay State Ambulance and Hospital Rental Services,
a privately owned ambulance company, gave cash and two automobiles to an
official of a city-owned hospital. The gifts were given as an inducement to the
city official for his recommendation that Bay State be awarded the Quincy City
Hospital ambulance service contract, for which Bay State received some
Medicare funds as reimbursement. The defendants appealed, and the U.S.
Court of Appeals for the First Circuit held that the evidence was sufficient to
sustain a conviction.
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▸ TAMPERING WITH DRUGS
In United States v. Milstein, the government established at trial that the
defendant and others purchased Eldepryl, a medication used to treat
Parkinson’s disease, and the fertility drugs Pergonal and Metrodin, which were
produced for distribution outside the United States; stripped them of their
original factory packaging; and repackaged them with forged labels and
packaging materials closely resembling those of drugs produced in
accordance with Food and Drug Administration (FDA) requirements for the
U.S. market. They then fraudulently sold the drugs in the United States to
doctors, pharmacists, and pharmaceutical wholesalers. The conviction for
distributing the misbranded drugs in interstate commerce with fraudulent intent
was appropriate.
THE TOXIC PHARMACIST
. . . Robert Courtney would, by law enforcement estimates, dilute 98,000
prescriptions for 4,200 patients. The sheer voraciousness of his dilutions
suggests the compulsion of a pathological shoplifter. At times, Courtney
diluted conservatively; at others, he reduced medications to trace amounts,
seemingly taunting their recipients: Feel anything now? Though Courtney’s
highest profits came from diluting expensive chemotherapy medication—a
plaintiff’s lawyer says he pocketed as much as $50,000 in the treatments for
a single cancer patient—Courtney adulterated a total of 72 different drugs,
including fertility drugs, antibiotics, drugs to prevent nausea, and others to
improve blood clotting.
—Robert Draper, “The Toxic Pharmacist,” The New York Times, June 8,
2003
In another case, the chief medical officer of the Nebraska Department of
Health and Human Services Regulation and Licensure entered an order
revoking Poor’s license to practice as a chiropractor in the state of
Nebraska. Poor engaged in a conspiracy to manufacture and distribute a
misbranded substance, and he introduced into interstate commerce
misbranded and adulterated drugs with the intent to defraud and mislead. He
was arrested for driving under the influence and was convicted of that offense.
In addition, Poor knowingly possessed cocaine. He conceded that these
factual determinations were understood as beyond dispute.
Both the district and appellate courts found that Poor’s conduct was clearly
immoral. The appellate court stated that Poor’s denial now, after taking
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advantage of a plea bargain, that he committed any of the acts he admitted to
in the U.S. District Court is disturbing and is not consistent with the integrity
expected by persons engaged in a professional occupation.
The Supreme Court of Nebraska, as a result of the seriousness of Poor’s
felony conviction and its underlying conduct, his subsequent lack of candor
with respect to that conduct, and his lack of sound judgment demonstrated by
his driving under the influence conviction, concluded that revocation of Poor’s
license was an appropriate sanction.
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▸ INTERNET PHARMACY AND SALE OF DRUGS
The use of Internet pharmacies has been on the rise due to the high cost of
drugs. Not only are patients purchasing bogus medications, but they also are
obtaining questionable prescriptions from physicians through the Internet, as
noted in United States v. Nelson, where Fuchs operated an Internet
pharmacy called NationPharmacy.com. Customers would obtain prescription
and nonprescription drugs from the Internet pharmacy. In accord with federal
law, all requests for prescription drugs must be reviewed by a physician. Dr.
Nelson, the defendant in this case, agreed to review the prescriptions,
approving 90 to 95% of prescription requests without examining his purported
patients. Customers who used Fuchs’s Internet pharmacy would have their
orders routed through a brick-and-mortar pharmacy called Main Street
Pharmacy. Dr. Nelson would physically visit Main Street Pharmacy to sign the
prescription requests, and customers would receive prescriptions by mail and
pay Fuchs directly.
Dr. Nelson was charged and convicted of both conspiracy to distribute
controlled prescription drugs outside the usual course of professional practice,
in violation of 21 U.S.C. § 846, and conspiracy to launder money, in violation
of 18 U.S.C. § 1956(h). Dr. Nelson appealed his conviction, arguing that there
was insufficient evidence to support a conviction because there was no
evidence of a conspiracy. On appeal, the court determined that a reasonable
jury could infer the existence of an agreement constituting a conspiracy to
distribute prescription drugs outside the usual course of professional practice
and to launder the proceeds of that distribution.
Federal law 21 U.S.C. § 841(a) makes it illegal for any person knowingly or
intentionally:
1. to manufacture, distribute, or dispense, or possess with intent to
manufacture, distribute, or dispense, a controlled substance; or
2. to create, distribute, or dispense, or possess with intent to distribute or
dispense, a counterfeit substance.
MOST ONLINE PHARMACIES ARE FRAUDS, FDA WARNS
The FDA is warning consumers that almost all Internet pharmacies are
fraudulent and probably are selling counterfeit drugs that could harm them.
• • •
Instead, they’re getting fake drugs that are contaminated, are past their
expiration date or contain no active ingredient, the wrong amount of active
ingredient or even toxic substances. These drugs could sicken people,
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cause them to develop a resistance to their real medicine, cause no side
effects or trigger harmful interactions with other medications.
—Associated Press, The Washington Post, October 2, 2012
RENEWED CRITICISM FOR GOOGLE OVER DRUG SITES
Several state attorneys general are pressing Google to make it harder for its
users to find counterfeit prescription medicine and illegal drugs online,
marking the second time in the past 3 years that the firm has drawn
government scrutiny for its policies on rogue Internet pharmacies.
• • •
Google, which failed to persuade a California judge to dismiss the suits,
entered settlement talks last month after attorneys for the shareholders
obtained e-mails showing that top executives warned then-chief executive
Eric Schmidt and co-founder Larry Page more than a decade ago about the
risks of accepting such ads.
—Matea Golf and Tom Hamburger, The Washington Post, April 16, 2014
Dr. Richard Ruth, a 78-year-old physician, was sentenced to 15 to 30 years in
prison, and his son Michael was sentenced 7 to 22 years in prison, for running
what has been termed a “pill mill” involving the illegal distribution of tens of
thousands of prescription drugs to, for example, drug addicts. The County
Court Judge in this case “expressed bafflement at the Ruths’ lack of remorse
or acceptance of responsibility.” “Your claims of victimization defy common
sense,” the judge said to Michael Ruth, 46.
The illegal sale of drugs on the Internet continues to grow as unsuspecting
patients search for cheaper drugs. Internet pharmacy is a risky business, as
noted in the following news report and the case that follows.
Although Google reached a settlement to pay $500 million to avoid
prosecution for aiding illegal online pharmaceutical ads, some state
prosecutors want to see more from Google in preventing ads from unlicensed
pharmacies. “Google acknowledged in the settlement that it had improperly
and knowingly assisted online pharmacy advertisers allegedly based in
Canada to run advertisements for illicit pharmacy sales targeting U.S.
customers.”
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Where greed is involved and money the reward, criminals believe the risks
taken are worth the monetary reward gained, as is noted by how common
Internet crimes have become. The various schemes to sell both tainted and
illegal drugs on the Internet are becoming more creative.
Healthcare providers convicted of illegally selling prescription drugs face not
only criminal penalties but the loss of their licenses to practice medicine, as
was the case in Brown v. Idaho State Board of Pharmacy, where the Idaho
State Board of Health suspended the license of a pharmacist who admitted to
using marijuana approximately twice a week. During a hearing by the Board,
the hearing officer admitted into evidence a copy of a judgment of a conviction
on Brown’s plea of guilty to a criminal charge of possession of drug
paraphernalia. The Idaho State Board of Pharmacy suspended Brown’s
license. On appeal, the Idaho Court of Appeals held that revocation of his
license was supported by evidence that he engaged in the illegal use of
marijuana and that he also had participated in the sale and delivery of a
misbranded drug.
It is important to note that not only is the physician at risk for writing illegal
prescriptions, but the pharmacist is at risk as well if he or she knowingly fills
such prescriptions.
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▸ FALSIFICATION OF RECORDS
As with healthcare fraud, falsification of medical and business records is
grounds for criminal prosecution. Anyone who suffers damage as a result of
falsification of records may claim civil liability, which could result in the
provider’s loss of Medicare and Medicaid funding.
False Entries in Operative Report
When a surgeon omitted a true entry in his operative report by not indicating
that a nonphysician assisted in a patient’s surgery, the surgeon was indicted
for falsification of records. Two of the defendants, orthopedic surgeons Dr.
Lipton and Dr. Massoff, in People v. Smithtown General Hospital, on the
morning of July 3, 1975, performed an orthopedic procedure on a patient. The
prosthesis used during surgery was supplied by a general sales manager, Mr.
MacKay, who was present in the operating room during most of the operation,
which began at 8:00 AM and ended at 11:30 AM. After completion of the
operation, an X-ray of the patient revealed that the “head of the femur popped
out of the acetabulum.” At the request of Lipton, the salesman was located
at a golf course and asked to return to the hospital. On arriving back in the
operating room, he found Massoff reopening the surgical site. Massoff
attempted to remove the prosthesis. MacKay offered his assistance and
successfully removed the prosthesis. Massoff then returned to his office. With
the consent of Lipton, MacKay removed the cement from the bone shaft and
reinserted the prosthesis. An indictment charged Lipton with the intent to
defraud and to conceal the crimes of unauthorized practice of medicine and
assault. A similar indictment was returned against a supervising nurse and the
hospital for failure to make a true entry in the operating room register.
VA TREATMENT RECORDS FALSIFIED, PROBE FINDS
A VA investigation of one of its outpatient clinics in Colorado reveals how
ingrained delays in medical care may be for an agency struggling to rapidly
treat nearly 9 million veterans a year amid allegations that dozens have died
because of delays.
Clerks at the Department of Veterans Affairs clinic in Fort Collins were
instructed last year how to falsify appointment records so it appeared the
small staff of doctors was seeing patients within the agency’s goal of 14
days, according to the investigation.
—Gregg Zoroya, USA Today, May 4, 2014
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A motion to dismiss the indictments against the physicians and nurse charged
with falsifying business records in the first degree was denied. A motion to
dismiss the indictments for assault in the second degree was granted.
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▸ PATIENT ABUSE
Patient abuse is the mistreatment or neglect of individuals who are under the
care of a healthcare organization. Abuse is not limited to an institutional setting
and may occur in an individual’s home. Abuse can take many forms: physical,
psychological, medical, and financial. To compound the issue, abuse is not
always easy to identify because injuries often can be attributed to other
causes, especially in elderly patients with their advanced age and failing
health. In the hospital setting, patients are not generally as dependent on the
facility operator in the same manner as a resident in a nursing facility. Patients
are usually hospitalized only for brief time periods, whereas nursing facility
residents may be dependent on the facility operator for years. Thus the
potential for long-term abuse and neglect is far greater for nursing facility
residents than hospital patients.
Unfortunately, the abuse of the elderly is not a localized or isolated problem; it
permeates society. Behind Closed Doors, a landmark book on family violence,
stated that the first national study of violence in American homes estimated
that one in two homes is the scene of family violence at least once a year.
GRANNY CAMS
Gale . . . wasn’t prepared for the rough treatment and cruel taunts she says
her ailing mother suffered at the nursing home. She cried as a nurse’s aide
upbraided her mother for failing to straighten her arthritis-stricken legs. And
she watched in disbelief as an assistant jerked her mother off her rubber
bed pad and pushed her into the bed’s metal rails.
All of these images were caught . . . by a “granny cam”—a camera hidden in
her mother’s room.
—Deborah Sharp, “On the Watch in Nursing Homes: Coalition Wants
Granny Cams to Protect Elderly from Neglect,” USA Today, September 14,
1999
We have always known that America is a violent society. . . . What is new
and surprising is that the American family and the American home are
perhaps as much or more violent than any other single institution or setting
(with the exception of the military, and only then in the time of war).
Americans run the greatest risk of assault, physical injury and even murder
in their own homes by members of their own families.
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It is difficult to determine the extent of elder abuse because the abused elderly
are reluctant to admit that their children or loved ones have assaulted them.
According to a 2005 fact sheet by the National Center on Elder Abuse,
“between 1 and 2 million Americans age 65 years or older have been injured,
exploited, or otherwise mistreated by someone on whom they depended for
care and protection.”
The plaintiffs in In re Estate of Smith v. O’Halloran instituted a lawsuit in an
effort to improve deplorable conditions at many nursing homes. The court
concluded that:
The evidentiary record . . . supports a general finding that all is not well in
the nation’s nursing homes and that the enormous expenditures of public
funds and the earnest efforts of public officials and public employees have
not produced an equivalent return in benefits. That failure of expectations
has produced frustration and anger among those who are aware of the
realities of life in some nursing homes, which provide so little service that
they could be characterized as orphanages for the aged.
Abuse of nursing facility residents gave impetus to the strengthening of
resident rights under the Omnibus Budget Reconciliation Act of 1989. The Act
provides that a “resident has the right to be free from verbal, sexual, physical,
or mental abuse, corporal punishment, and involuntary seclusion.” Although
resident rights have been significantly strengthened, resident abuse is often in
the headlines. For example, the headline, “Nurse’s Aide Jailed for Punching
Patient,” topped a story about a nurse’s aide who was jailed for punching a 91-
year-old senile man in the nose. The aide had been previously convicted of
resident abuse.
Questions to ask in order to determine whether patients are being abused:
Are physician time-limited orders for restraints documented in each
patient’s medical record?
Are there an unusual number of patients who are physically
restrained?
Which restraints are commonly being used (e.g., physical,
medication)?
Are physical restraints applied correctly?
What is the apparent physical and mental condition of restrained
patients?
Are physical restraints periodically released as required by law?
Are patients able to move about and exercise, with assistance as
necessary?
Do staff members respond to requests for water and assist patients to
the bathroom on a timely basis?
How often are observations of restrained patients documented?
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Do patients show signs of overmedication?
Are there signs of mental and physical abuse?
Are there signs of harassment, humiliation, or threats from staff or
patients?
Are patients comfortable with staff?
Do patients show skin breakdown due to bruises or other causes (e.g.,
failure to turn patients in bed)?
Is there evidence of patient neglect (e.g., patients left in urine or feces
without cleaning)?
Abusive Search
A nurse in People v. Coe was charged with a willful violation of the public
health law in connection with an allegedly abusive search of an 86-year-old
resident at a geriatric center and with the falsification of business records in
the first degree. The resident, Mr. Gersh, had heart disease and difficulty in
expressing himself verbally. Another resident claimed that two $5 bills were
missing. Nurse Coe assumed that Gersh had taken them because he had
been known to take things in the past. The nurse proceeded to search Gersh,
who resisted. A security guard was summoned, and another search was
undertaken. When Gersh again resisted, the security guard slammed a chair
down in front of him and pinned his arms while the defendant nurse searched
his pockets, failing to retrieve the two $5 bills. Five minutes later, Gersh
collapsed in a chair, gasping for air. Coe administered cardiopulmonary
resuscitation but was unsuccessful, and Gersh died.
Coe was charged with violation of Section 175.10 of the New York Penal Law
for falsifying records, because of the defendant’s “omission” of the facts
relating to the search of Gersh. These facts were considered relevant and
should have been included in the nurse’s notes regarding this incident. “The
first sentence states, ‘Observed resident was extremely confused and talks
incoherently. Suddenly became unresponsive. . . .’ This statement is simply
false. It could only be true if some reference to the search and the loud noise
was included.” A motion was made to dismiss the indictment at the end of
the trial.
The court held that the search became an act of physical abuse and
mistreatment, the evidence was sufficient to warrant a finding of guilt on both
charges, and the fact that searches took place frequently did not excuse an
otherwise illegal procedure.
It may well be that this incident reached the attention of the criminal justice
system only because, in the end, a man had died. In those instances that are
equally volatile of residents’ rights and equally contrary to standards of
common decency but which do not result in visible harm to a patient, the acts
are nevertheless illegal and subject to prosecution. A criminal act is not
legitimized by the fact that others have, with impunity, engaged in that act.
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Repeated Instances of Physical Abuse
The revocation of a personal care home license was found to be proper in
Miller Home, Inc. v. Commonwealth, Department of Public Welfare because
of repeated medication violations and resident abuse. Evidence was
presented that the son of the personal care home’s manager was hired as a
staff member after having acted as a substitute, even though he had physical
altercations with residents of the home. On one occasion, the manager’s son
punched a female resident, resulting in her hospitalization for broken bones
around the eye, and on two prior occasions, he had been involved in less
physical altercations that required police intervention.
A nursing facility orderly challenged a determination by the commissioner of
the State Department of Health finding him guilty of resident abuse in Reid v.
Axelrod. The orderly maintained that the resident struck him with his cane
and that he merely pushed the cane away to avoid being struck a second time.
A co-employee testified that the orderly struck the resident in the chest after
being hit with the cane. The court held that the determination was supported
by substantial evidence and that the 3-year delay in conducting the hearing did
not warrant dismissal of the petition charging the orderly with resident abuse.
Public policy requires that residents must be protected from abusive
healthcare workers.
The nursing facility resident in Stiffelman v. Abrams died as a result of the
following abuse:
“. . . blows, kicks, kneeings, or bodily throwings intentionally, viciously, and
murderously dealt him from among the facility’s staff over a period of
approximately two to three weeks prior to his death”; that the “beatings
were repeated and were received by the decedent at ninety years of age
and in a frail, defenseless, and dependent condition”; that the beatings so
administered to the decedent were “physically and mentally tortuous”; that
he was caused by them to live out his final days in agony and terror; and
that his physical injuries included thirteen fractures to his ribs, subpleural
hemorrhaging, and marked lesions to his chest, flanks, abdomen, legs,
arms, and hands; that during and following the period of the beatings the
decedent lay at the facility for days unattended and unaided as to the
deterioration and grave suffering he was undergoing.
The executors of the estate had brought suit against the operator and
individual and corporate owners of the facility for damages for personal injuries
resulting in the death of the resident. The executors were requesting, under
Count I, $1.5 million in survival damages because of the physical and mental
pain and suffering of the decedent, as well as $3 million for punitive damages,
and under Count II, $1,504,084 in contractual breaches of the resident’s
admission contract with the facility. The executors claimed that certain
standards of care and personal rights contained in the contract were violated.
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The trial court sustained the nursing facility’s motion for dismissal of the case
on the grounds that the plaintiffs failed to state a claim on which relief could be
granted. On appeal, the judgment of the trial court was reversed with respect
to Count I, and the dismissal of Count II was sustained. The case was
remanded, requiring the executors to proceed under appropriate statutory
authority and not under contract.
Forcible Administration of Medications
The medical employee in In re Axelrod sought review of a determination by
the commissioner of health that she was guilty of resident abuse. Evidence
showed that the employee, after a resident refused medication, “held the
patient’s chin and poured the medication down her throat.” There was no
indication or convincing evidence that an emergency existed that would have
required the forced administration of the medication. The court held that
substantial evidence supported the commissioner’s finding that the employee
had been guilty of resident abuse.
Upon our review of the record, we conclude that the Commissioner’s
determination that the petitioner had been guilty of patient abuse was
supported by substantial evidence. The record supports the respondent’s
findings that the petitioner forcibly administered medication to the patient;
that there was no order directing the petitioner to administer the medication
forcibly; and that there was no convincing evidence that the patient’s
refusal to take the medication constituted a medical emergency justifying
the forcible administration of medication.
ABUSE OF STROKE PATIENT
Citation: State v. Houle, 642 A.2d 1178 (Vt. 1994)
Facts
The defendant, a licensed practical nurse (LPN), had criminal charges
brought against her stemming from her treatment of a stroke patient. It was
alleged that she had slapped the patient’s legs repeatedly and shackled him
to his bed at the wrists and ankles. By the time of trial, the patient had died
of causes unrelated to the charged conduct. During the trial, the state
presented testimony of eyewitnesses, including the patient’s wife, hospital
employees, and an investigator from the office of the attorney general. The
defendant did not deny that she had restrained the patient, but claimed that
her actions were necessary for the patient’s protection, as well as her own,
and that her actions were neither assaultive nor cruel. The defendant
claimed that the trial court improperly admitted evidence that the patient
submitted.
Issue
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Was the evidence that the patient submitted admissible in prosecution of the
defendant?
Holding
The Vermont Supreme Court held that the evidence that the patient gave
was relevant and admissible.
Reason
The patient’s awareness of what happened to him was relevant to the
state’s case because the trial court, in its instruction to the jury, defined
cruelty as “intentional and malicious infliction of physical or emotional pain or
suffering upon a person.” By showing that the patient was aware of what
had happened to him, the state allowed the jury to infer that he had suffered
physical or emotional pain. The state presented a witness who was present
when the incident occurred and who was able to describe the acts of abuse
in detail. The credibility of this eyewitness testimony, and not what the
patient’s testimony would have been, was the focus of the trial.
Abuse and Revocation of License
The operator of a nursing facility appealed an order by the department of
public welfare revoking his license because of resident abuse in Nepa v.
Commonwealth Department of Public Welfare. Substantial evidence
supported the department’s finding. Three former employees testified that the
nursing facility operator had abused residents in the following incidents: he
unbuckled the belt of one of the residents, causing his pants to drop, and then
grabbed a second resident, forcing the two to kiss (petitioner’s excuse for this
behavior was to shame the resident because of his masturbating in public); on
two occasions, he forced a resident to remove toilet paper from a commode
after she had urinated and defecated in it (denying that there was fecal matter
in the commode, petitioner’s excuse was that this was his way of trying to stop
the resident from filling the commode with toilet paper); and he verbally
abused a resident who was experiencing difficulty in breathing and accused
him of being a fake as he attempted to feed him liquids.
The nursing facility operator claimed that the findings of fact were not based
on substantial evidence and that, even if they were, the incidents did not
amount to abuse under the code. The defendant attempted to discredit the
witnesses with allegations from a resident and another employee that one of
his former employees got into bed with a resident and that another had taken
a picture of a male resident while in the shower and had placed a baby bottle
and a humiliating sign around the neck of another resident. The court was not
impressed. Although these incidents, if true, were reprehensible, they were
collateral matters that had no bearing on the witnesses’ reputation for
truthfulness and therefore could not be used for impeachment purposes. The
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court held that there was substantial evidence supporting the department’s
decision and that the activities committed by the operator were sufficient to
support revocation of his license.
We believe Petitioner’s treatment of these residents as found by the
hearing examiner to be truly disturbing. These residents were elderly
and/or mentally incapacitated and wholly dependent on Petitioner while
residing in his home. As residents, they are entitled to maintain their dignity
and be cared for with respect, concern, and compassion.
Petitioner testified that he did not have adequate training to deal with the
patients he received who suffered from mental problems. Petitioner’s lack
of training in this area is absolutely no excuse for the reprehensible manner
in which he treated various residents. Accordingly, DPW’s order revoking
Petitioner’s license to operate a personal care home is affirmed.67
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▸ CRIMINAL NEGLIGENCE
Criminal negligence is the reckless disregard for the safety of others and the
willful indifference to an injury that could follow an act. The neglect of elderly
residents was noted in the State v. Cunningham, where the defendant was
the owner and administrator of a residential care facility that housed 30 to 37
mentally ill, mentally retarded, and elderly residents. The Iowa Department of
Inspections and Appeals conducted routine inspections of the defendant’s
facility between October 1989 and May 1990. All of the surveys except for one
resulted in a $50 daily fine assessed against the defendant for violations of the
regulations. On August 16, 1990, a grand jury filed an indictment charging the
defendant with several counts of wanton neglect of a resident in violation of
Iowa Code section 726.7 (1989), which provides: “A person commits wanton
neglect of a resident of a health care facility when the person knowingly acts in
a manner likely to be injurious to the physical, mental, or moral welfare of a
resident of a health care facility. . . . Wanton neglect of a resident of a health
care facility is a serious misdemeanor.”
The district court held that the defendant had knowledge of the dangerous
conditions that existed in the healthcare facility but willfully and consciously
refused to provide or exercise adequate supervision to remedy or attempt to
remedy the dangerous conditions. The residents were exposed to physical
dangers and unhealthy and unsanitary physical conditions and were grossly
deprived of much needed medical care and personal attention.
The district court sentenced the defendant to 1 year in jail for each of the five
counts, to run concurrently. The district court suspended all but 2 days of the
defendant’s sentence and ordered him to pay $200 for each count, plus a
surcharge and costs, and to perform community service. A motion for a new
trial was denied, and the defendant appealed.
The Iowa Court of Appeals held that there was substantial evidence to support
a finding that the defendant was responsible for not properly maintaining the
nursing facility, which led to prosecution for wanton neglect of the facility’s
residents. Substantial evidence means evidence that would convince a
rational fact finder that the defendant was guilty beyond a reasonable doubt.
The defendant was found guilty of knowingly acting in a manner likely to be
injurious to the physical or mental welfare of the facility’s residents by creating,
directing, or maintaining the following five hazardous conditions and unsafe
practices:
1. There were fire hazards and circumstances that impeded safety from
fire. For example, cigarette stubs were found in a cardboard box, and
burn holes were found in patient clothing, on furniture, and in
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nonsmoking areas. Also, exposed electrical wiring was found, along
with a bent and rusted fire door that could not close or latch.
2. The facility was not properly maintained and demonstrated many
health and safety violations, including broken glass in patients’ rooms;
excessively hot water in faucets; dried feces on public bathroom walls
and grab bars; no soap in the kitchen; insufficient towels and linens;
dead and live cockroaches and worms in the food preparation area;
and debris, bugs, and grease throughout the facility.
3. Dietary facilities were unsanitary and inadequate to meet the dietary
needs of the residents. In one particular case, an ordered “no
concentrated sweets” diet for a diabetic patient was not followed,
subjecting the patient to life-threatening blood sugar levels.
4. There were inadequate staffing patterns and supervision in the facility.
No funds were spent on employee training, and the defendant did not
spend the minimum amount of time at the facility, as required by
administrative standards.
5. Improper dosages of medications were administered to the residents.
For example, physicians distributed an ongoing overdose of heart
medication to one resident while failing to administer medication to
another (which resulted in a seizure).
The defendant argued that he did not create the unsafe conditions at the
facility. The court of appeals disagreed. The statute does not require that the
defendant create the conditions at the facility to sustain a conviction. The
defendant was the administrator of the facility and responsible for the
conditions that existed.
Cruelty to the Infirm
Cruelty to the infirm is the intentional neglect by any person, including a
caregiver, causing unjustifiable pain or suffering to an infirm, aged patient. The
defendants in State v. Brenner were charged with cruelty to the infirm. The
defendants brought a challenge stating that the criminal statutes under which
they were charged were constitutionally vague. According to the court, Section
14.12 of Louisiana Revised Statutes defines criminal negligence as follows:
Criminal negligence exists when, although neither specific nor general
criminal intent is present, there is such disregard of the interest of others
that the offender’s conduct amounts to a gross deviation below the
standard of care expected to be maintained by a reasonably careful man
under like circumstances.
Criminal negligence requires:
. . . a gross deviation below the standard of care expected to be maintained
by a reasonably careful man under like circumstances. It calls for
substantially more than the ordinary lack of care, which may be the basis of
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tort liability, and furnishes a more explicit statement of that lack of care,
which has been variously characterized in criminal statutes as “gross
negligence” and “recklessness.”
The state alleged that the administrator of the nursing facility neglected and
mistreated residents by failing to ensure that the facility was maintained in a
sanitary manner, necessary health services were performed, staff were
properly trained, there were adequate medical supplies and sufficient staff,
records were maintained properly, and the residents were adequately fed and
cared for.
In addition to allegations of neglect and mistreatment of residents, other
allegations charged the director of nursing with failing to properly train the staff
at the facility in correct nursing procedures. The controller was alleged to have
failed to purchase adequate medical supplies for proper treatment. The
admissions director allegedly failed to exercise proper judgment regarding
admission procedures, and the physical therapist allegedly failed to provide
adequate physical therapy services. The defendants asserted that the term
neglect was unconstitutionally vague. The Louisiana Supreme Court, on
appeal by the defendants from two lower courts, held that the phrases
“intentional or criminally negligent mistreatment or neglect” and “unjustifiable
pain and suffering” were not vague and that they were sufficiently clear in
meaning to afford a person of ordinary understanding fair notice of the conduct
that was prohibited.
This case clearly illustrates how various employees can be included in a legal
action involving criminal negligence. It serves as a reminder about the
responsibility of all employees to serve as advocates for all patients.
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▸ HOMICIDE
Murder of Newborn Babies
In a highly publicized case, Dr. Kermit Gosnell was convicted of murdering
newborn babies by snipping their spinal cords shortly after delivery. The jury,
following a 2-month trial and 10 days of deliberation, convicted Gosnell of
murder. Although it was expected that prosecutors would seek the death
penalty, Gosnell made a deal with prosecutors promising not to appeal the
jury’s decision in exchange for life in prison without parole.
DOCTOR KILLED IN HOSPITAL ATTACK WAS COVERING
SHIFT FOR CO-WORKER
In an instant, Dr. Henry Bello triggered a Code Silver at Bronx Lebanon
Hospital, sending his one-time colleagues diving for cover on the hospital’s
top two floors while he repeatedly pulled his trigger, killing a doctor who had
the misfortune of covering someone else’s shift as a favor and injuring six
others, including a patient.
—Coleen Long and Julie Watson, The Washington Times, July 3, 2017
All too often, places of healing become homicide scenes, as was the case at
Bronx Lebanon Hospital in New York. Homicide includes all killings of
humans and ranges from manslaughter to murder with varying degrees of
each representing the severity of the crime. First-degree murder involves the
deliberate and premeditated killing of another with malice aforethought.
Second-degree murder is not deliberate and is not premeditated; however, it
is the killing of another with malice aforethought. The tragedy of murder in
institutions that are dedicated to the healing of the sick has been an all-too-
frequent occurrence, as noted in the following examples.
3 SHOT AT GEORGIA HOSPITAL; SUSPECT CAPTURED
Armed with a 3-year grudge and more guns than he could hold, a former
substitute schoolteacher stormed a hospital looking to punish the nurse he
blamed for his mother’s death. The nurse, another employee and a
bystander are dead . . .
—Daniel Yee, The Capital, March 29, 2008
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DOCTOR AT BOSTON’S BRIGHAM AND WOMEN’S
HOSPITAL DIES AFTER SHOOTING, SUSPECT DEAD
“Dr. Davidson was a wonderful and inspiring cardiac surgeon who devoted
his career to saving lives and improving the quality of life of every patient he
cared for,” said a statement issued by the hospital, which is affiliated with
Harvard Medical School. “It is truly devastating that his own life was taken in
this horrible manner.”
—HuffPost/AP, The Huffington Post, January 20, 2015
Nurse Sentenced for Diabolical Acts
From 1993 to 1995, Majors worked as a licensed practical nurse (LPN) in the
intensive care unit (ICU) of a county hospital. He may have been a competent
nurse, but he had one problem: An incredibly high number of elderly patients
died under his watch. By 1995, after rumors started to circulate that he was
euthanizing patients, the hospital suspended him, and the state board of
nursing suspended his license.
In 1994, 100 of the 351 people admitted to the hospital’s four-bed ICU died. A
large percentage of those who died were elderly. In comparison, during the
previous 4 years, an average of only 27 patients per year died, out of an
average of 354 admitted to the ICU each year.
Spurred on by her suspicions (and those of other nurses), Nurse Stirek
conducted an analysis showing that Majors was present for more deaths than
any other nurse, almost twice as many as the nearest contender. After Stirek
showed her analysis to Ling, the hospital’s president and chief executive
officer, Ling suspended Majors from work, with pay. Later, Ling asked the
police to investigate, and Majors was subsequently prosecuted.
Majors was sentenced to spend life in prison for murdering six elderly patients,
a crime the judge referred to as a paragon of evil at its most wicked. Majors
had been entrusted with their care; in response, he committed diabolical acts
that extinguished the frail lives of six people.
Fatal Injection of Pavulon
In a case involving Angelo, a registered nurse on the cardiac/intensive care
unit at a Long Island hospital, the defendant was found guilty of second-
degree murder for injecting two patients with the drug Pavulon. He was found
guilty of the lesser charges of manslaughter and criminally negligent homicide
in the deaths of two other patients. Angelo committed the murders in a bizarre
scheme to revive the patients and be thought of as a hero.
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Fatal Injection of Lidocaine
In another case, Hargrave v. Landon, the defendant, a nurse’s aide, was
convicted of murder in the first degree when he was found to have injected an
elderly patient with a fatal dose of the drug lidocaine. He was sentenced to life
imprisonment by the circuit court. The defendant appealed the judgment of the
circuit court, alleging that his due process rights were violated during the trial
when the trial court failed to grant his motion for change of venue. Because of
what was termed the carnival atmosphere surrounding the trial, he argued the
trial court should have sequestered the jury. In addition, the defendant claimed
the trial court improperly admitted evidence of other crimes. Finally, he
asserted the evidence was insufficient as a matter of law to sustain the
conviction.
The U.S. district court held that the nurse’s aide failed to establish that he was
denied an impartial jury because of adverse pretrial publicity, especially
because the tenor of newspaper articles before his trial was primarily
informative and factual and the articles treated the story objectively. The
evidence was determined to have been sufficient to support the petitioner’s
conviction for murder.
Lethal Dose of Anesthesia
A licensed dentist and an oral surgeon in People v. Protopappas were
convicted in the superior court of second-degree murder for the deaths of
three patients who died after receiving general anesthesia. The record
revealed that the three patients received massive doses of drugs, which
resulted in their deaths. The dosages had not been tailored to the patients’
individual conditions. The dentist had also improperly instructed surrogate
dentists, who were neither licensed nor qualified to administer general
anesthesia, to administer preset dosages for an extended time with little or no
personal supervision. In addition, the dentist had been habitually slow in
reacting to resulting overdoses. In one case, the patient’s general physician
informed the defendant that the 24-year-old, 88-pound patient suffered from
lupus, total kidney failure, high blood pressure, anemia, heart murmur, and
chronic seizure disorder, and should not be placed under anesthesia even for
a short time. The defendant consciously elected to ignore that medical opinion.
On appeal, the court of appeals found that there was sufficient evidence of
implied malice to support the jury’s findings that the dentist and the oral
surgeon were guilty of second-degree murder.
This is more than gross negligence. These are the acts of a person who
knows that his conduct endangers the life of another and who acts with
conscious disregard for life. . . . Many murders are committed to satisfy a
feeling of a hatred or grudge, it is true, but this crime may be perpetrated
without the slightest trace of personal ill-will.
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Not every charge of suspected murder ends in a conviction; however, there is
a heavy price to be paid due to the mental anguish suffered by those charged
with the crime.
Lethal Dose of Codeine
Evidence supported a finding that a nurse killed the plaintiff’s decedent in
Havrum v. United States. After a bench trial in an action brought under the
Federal Tort Claims Act, the trial court concluded that Williams, a nurse at a
Veterans Affairs (VA) hospital, killed veteran Elzie Havrum. On appeal, the
government challenged the sufficiency of the evidence.
Ms. Havrum was required to show that the VA hospital had a duty to protect
Mr. Havrum from injury and that its failure to perform that duty caused his
death. The government did not challenge the trial court’s conclusion that the
hospital breached its duty to protect Havrum from the nurse, who presented a
danger to patients. The government contends, however, that Havrum failed to
establish causation because the evidence did not support the court’s finding
that the nurse killed Havrum.
The trial court found that Williams gave Havrum a lethal dose of codeine, and
that even disregarding the evidence of codeine poisoning, the circumstantial
evidence indicated that Williams killed Havrum. The trial court relied, in part,
on a study by the hospital’s epidemiologist, Dr. Christensen, who investigated
a suspected link between Williams and an increase in deaths on the ward
where Williams customarily worked. The study concluded that patients who
were under Williams’s care were nearly 10 times more likely to die than
patients not under his care. In addition, Williams was associated with many
unexpected deaths that occurred in private rooms. Christensen also testified
that he had never seen anything so unusual as the number of patients who
died on the relevant ward from May through July 1992, between 1:00 AM and
3:00 AM (a period when fewer deaths generally occur). Williams was present
for 11 of the 13 deaths in that interim, although he worked on only one third of
the shifts.
Christensen concluded that there was only one chance in a million that the
pattern of deaths on the ward was random and that there was a compelling
correlation between the deaths and Williams for which Christensen could find
no benign explanation. Although the court agreed with the government, the
statistical evidence alone does not establish that Williams caused Havrum’s
death; that evidence is nevertheless probative. It was, moreover, only one
aspect of the circumstantial evidence upon which the trial court relied in finding
causation.
With regard to Havrum specifically, the court noted that his death was among
those that Christensen found highly unusual. Havrum died on the ward in
question at 1:15 AM in a private room with Williams present. Havrum was not
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expected to die, and the government offered no evidence that he faced death
as part of some short-term natural progression. Although Havrum suffered
from a serious illness, the admitting physician did not place him in intensive
care and did not believe that his death was imminent. Havrum actually
reported feeling better while he was in the hospital, but 16 hours after his
admission, he was pronounced dead.
The trial court also referred to suspicious inconsistencies and alterations in the
medical records. The court remarked that Williams first wrote a medical note
indicating that he found Havrum in severe respiratory distress at about 1:15
AM, the same time that the physician pronounced him dead. The time in the
note was then changed to 1:10 AM, a line was drawn through the note, and
the note was marked “error R.W.” Williams then wrote another medical note;
this time he stated that he found Havrum in severe respiratory distress at
about 1:10 AM and that the physician arrived at about 1:15 AM, just as
Havrum stopped breathing. Although the government suggests possible
innocent explanations for the changed entries and omissions, the trial court,
which noted that Williams had been fired by another hospital for inserting a
false entry into a patient’s chart, was free to draw its own, less-innocent
inferences from Havrum’s hospital records. In addition, one permissible
inference is that Williams’s evident uncertainty about what to say and to note
in the records indicates that there was, in fact, nothing particularly wrong with
Havrum, and that Williams took his life. The appellate court concluded that,
more likely than not, Williams did kill Havrum.
Removal of Life Support Equipment
There is generally a duty to provide life-sustaining equipment in the immediate
aftermath of cardiopulmonary arrest; however, there is no duty to continue its
use once it has become futile and ineffective to do so in the opinion of
qualified medical personnel. Two physicians in Barber v. Superior Court
were facing murder charges for failing to continue treatment. The charges
were based on their acceding to requests of the patient’s family to discontinue
life support equipment and intravenous tubes. The patient suffered a
cardiopulmonary arrest in the recovery room after surgery. A team of
physicians and nurses revived the patient and placed him on life support
equipment. The patient suffered severe brain damage, which placed him in a
comatose and vegetative state from which, according to tests and
examinations by other specialists, he was unlikely to recover. On the written
request of the family, the patient was taken off life support equipment. The
family, his wife and eight children, made the decision together after
consultation with the physicians. Evidence had been presented that the
patient, before his incapacitation, had expressed to his wife that he would not
want to be kept alive by a machine. There was no evidence indicating that the
family was motivated in their decision by anything other than love and concern
for the dignity of their loved one. The patient continued to breathe on his own.
Showing no signs of improvement, the physicians again discussed the
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patient’s poor prognosis with the family. The intravenous lines were removed,
and the patient died sometime thereafter.
A complaint was filed against the two physicians. The magistrate who heard
the evidence determined that the physicians did not kill the deceased,
because their conduct was not the proximate cause of the patient’s death. On
motion of the prosecution, the superior court determined as a matter of law
that the evidence required the magistrate to hold the physicians to answer and
ordered the complaint reinstated. The court of appeals held that the
physicians’ omission to continue treatment, although intentional and with
knowledge that the patient would die, was not an unlawful failure to perform a
legal duty. The evidence amply supported the magistrate’s decision.
NURSE INJECTS PATIENTS WITH LIDOCAINE
Citation: People v. Diaz, 834 P.2d 1171 (Cal. 1992)
Facts
The defendant, a registered nurse, was working on the night shift at a
community hospital. During a 3½-week period, 13 patients on the night shift
had seizures, cardiac arrest, and respiratory arrest; nine died. The unit
closed, and the defendant went to work at another hospital. Within 3 days, a
patient died after exhibiting the same symptoms as those of the patients in
the previous hospital while the defendant was on duty. The defendant was
arrested and tried for 12 counts of murder.
The testimony revealed that the defendant injected the patients with
massive doses of lidocaine (a rhythm-controlling drug). Evidence showed
that the defendant assisted the patients before they exhibited seizures,
providing opportunity for the nurse to administer the drug. She was
observed acting strangely on the nights of the deaths, and high
concentrations of lidocaine were found in the patients’ syringes. Moreover,
syringes containing the drug and lidocaine vials were discovered in the
defendant’s home.
Pretrial investigation revealed that 26 other patients had died at the
defendant’s first hospital while under the nurse’s care. All had the same
symptoms. The defendant, who waived her right to trial by jury, was found
guilty of the 12 counts of murder. The nurse appealed the judgment.
Issue
Did the expert testimony support the finding that an overdose of lidocaine
caused the patients’ deaths? Did the evidence prove that the defendant had
the opportunity to give patients overdoses of lidocaine?
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Holding
The California Supreme Court upheld the convictions.
Reason
The expert testimony about the levels of lidocaine in the patients’ tissue,
coupled with the nurse’s testimony concerning the symptoms prior to the
deaths, confirmed that the patients died from overdoses given to them by
the defendant. Testimony showed that the defendant was the only nurse on
duty the night each patient was poisoned, other nurses were there only on
some of the nights, and only the defendant had the opportunity to administer
the fatal doses.
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▸ MANSLAUGHTER
Manslaughter is the commission of an unintentional act that results in the
death of another person. It can be either voluntary or involuntary. Voluntary
manslaughter is the intentional killing of another person without premeditation
or malice aforethought, in what is commonly referred to as the “heat of
passion,” which is caused by the provocation of the victim (e.g., found having
an affair with the defendant’s spouse). Involuntary manslaughter is the result
of a negligent act that occurs when the defendant did not intend to kill the
victim but acted in a criminally negligent or reckless manner, such as
performing a risky surgical procedure when the defendant was aware that he
or she was not sufficiently competent to perform it. There are an endless
number of cases where physicians have been charged with manslaughter, as
follows.
A physician was charged in patient’s death from substandard tummy
tuck. A medical board found, after reviewing the case, that the
physician practiced internal medicine and was not a surgeon. He did
not have adequate backup, including support staff, equipment to
monitor vitals, or a crash cart, which would have had resuscitative
drugs, oxygen, and a defibrillator to be used in the event the patient
suffered distress during the procedure.”
A cosmetic surgeon was “charged with involuntary manslaughter after
allegedly giving a deadly cocktail of drugs during a liposuction
procedure, authorities said.”
A surgeon was convicted of manslaughter for delaying an operation
and was “sentenced to 2½ years in prison, of which he must serve at
least half, for delaying surgery for a man with a perforated intestine.”
In Manhattan Beach, a plastic surgeon was charged with manslaughter
after a liposuction patient died on the operating table. He was charged
with recklessly performing liposuction on a patient he knew previously
had had a heart transplant, causing her death during the operation.
A surgeon was charged with manslaughter over a kidney error in the
death of a war veteran whose healthy kidney was accidentally
removed instead of the diseased one.
SURGEON CONVICTED OF PATIENT MANSLAUGHTER
THROUGH NEGLIGENCE
The operation went smoothly but while recovering from surgery he
developed abdominal pain and was transferred to Sellu’s care. Sellu
suspected there had been a rupture in the patient’s bowel—a potentially life-
threatening condition that requires surgery—but the surgeon ignored the
urgency that the case demanded and the patient later died.
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—Owen Bowcott, The Guardian, November 5, 2014
Reviewing the various case studies and news clippings, there are a variety of
manslaughter charges against both family members and healthcare workers.
Dr. Conrad Murray, for example, was convicted of involuntary manslaughter in
the death of Michael Jackson for providing him with the powerful operating
room anesthetic propofol on a nightly basis to help him sleep. He had been
sentenced to a 4-year prison term. After serving 2 years of his 4-year
sentence, he was released from prison following a U.S. Supreme Court
decision on state prison conditions that diverted him to the overcrowded Los
Angeles County lockup. In another case, the Boston Globe reported a
healthcare worker was ordered held on $20,000 bail on a manslaughter
charge for allegedly ignoring a mentally ill client who was choking to death on
a piece of steak. In another reported case, a physician was facing
manslaughter charges for the alleged overdose of one of his patients who died
of a methadone overdose.
A study published in the Journal of the Royal Society of Medicine identified 85
reported cases of manslaughter from 1995 to December 2005 by searching
newspaper databases, Medline, Embase, and the Wellcome library catalogue.
The study concluded:
The number of doctors prosecuted for manslaughter has risen steeply
since 1990, but the proportion of doctors convicted remains low.
Prosecution for deliberately violating rules is understandable, but accounts
for only a minority of these cases. Unconscious errors—mistakes and slips
(or lapses)—are an inescapable consequence of human actions and
prosecution of individuals is unlikely to improve patient safety. That
requires improvement to the complex systems of health care.
FAMILY NEGLECTED WOMAN TO DEATH: AUTHORITIES
SAY
The family of a 65-year-old woman has been charged with manslaughter
after authorities say the woman’s body was found covered in infected
bedsores that left her ribs exposed, the Tampa Bay Times reports. The
Hillsborough County Sheriff’s Office says Mary Winston, a former nurse, had
rheumatoid arthritis that was so severe she couldn’t move. Her husband told
authorities they should have sought professional medical care, but they
were scared to let authorities see how badly her condition had deteriorated.
—Health News Florida Staff, Health News Florida, June 27, 2013
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Although charges are often reduced, the lessons are clear—healthcare
professionals must be aware of the potential for criminal charges as they
practice in healthcare settings.
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▸ RAPE AND SEXUAL ASSAULT
Rape occurs when one person is forced, without giving consent, to have
sexual intercourse with another. Statutory rape occurs when a person under
the age of legal consent has sexual intercourse with another. An action was
filed against a nursing home in Dupree v. Plantation Pointe, L.P. after the
plaintiff’s mother was sexually assaulted at the nursing home by a dementia
patient. A registered nurse testified that on the night of the incident, the
nursing home was properly staffed and that no member of the nursing home
staff did anything improper in the treatment of the assaulted resident. She
stated measures were taken to protect residents from the dementia resident.
Furthermore, she testified that only a doctor had the power to order restraints
or transfer the patient and that the doctors did not do so. In addition, there was
testimony that there was no penetration, that the resident suffered no physical
injury, and that she was not even aware of the assault. The trial court did not
err in finding that the nursing home had not breached its duty of care.
Dr. Earl Brian Bradley, a pediatrician, was indicted in 2010 for molesting,
raping, and exploiting his pediatric patients. After trial he was sentenced on
June 26, 2011 to 14 consecutive life terms in prison. The hospital where he
had worked had previously cleared Dr. Bradley after conducting an internal
investigation following an accusation of inappropriate conduct with young
patients. “Hence, administrators reportedly never informed the state’s medical
disciplinary board or law enforcement authorities of the allegations.”
Whatever the circumstances of the investigation were, conducting a thorough
investigation is mandatory for the safety of both staff and patients.
Although statistics are not reliable, rape cases in healthcare facilities are not
infrequent occurrences. The hospital’s responsibilities in an alleged rape
involve the following:
Notification of the parents if the patient is a minor
Timely notification of law enforcement
Following recognized procedures for examination of the patient
Collecting and protecting physical evidence (e.g., body fluids)
Thorough documentation (e.g., photographs and victim statements)
Treatment of patient injuries
Maintaining patient privacy and dignity
Providing emotional support
Referral for follow-up counseling
Pregnancy counseling as appropriate
The American Congress of Obstetricians and Gynecologists recommends the
following in evaluation and the treatment of victims of sexual assault:
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Medical Issues
Obtain informed consent.
Assess and treat physical injuries.
Obtain past gynecologic history.
Perform physical examination, including pelvic examination, with
appropriate chaperone.
Obtain appropriate specimens and serologic tests for sexually
transmitted infection testing.
Provide appropriate infectious disease prophylaxis as indicated.
If the assailant’s HIV status is unknown, evaluate the risks and benefits
of nonoccupational postexposure prophylaxis.
Provide or arrange for provision of emergency contraception as
indicated.
Provide counseling regarding findings, recommendations, and
prognosis.
Arrange follow-up medical care and referrals for psychosocial needs.
Legal Issues
Provide accurate recording of events.
Document injuries.
Collect samples as indicated by local protocol or regulation.
Identify the presence or absence of sperm in the vaginal fluids and
make appropriate slides.
Report to authorities as required.
Ensure security of chain of evidence.
An article titled “Patient education: Care after sexual assault (beyond the
basics)” contains more helpful information; it can be found at
www.uptodate.com.
A hospital technologist in Copithorne v. Framingham Union Hospital alleged
that a staff physician raped her during the course of a house call. The
technologist’s claim against the hospital was summarily dismissed for lack of
proximate causation. On appeal, the dismissal was found to be improper when
the record indicated that the hospital had received notice of allegations that
the physician assaulted patients on and off the hospital’s premises. The
hospital had instructed the physician to have another individual present when
visiting female patients and had instructed nurses to keep an eye on him. The
physician’s sexual assault was foreseeable. There was evidentiary support for
the proposition that failure to withdraw the physician’s privileges caused the
rape when the technologist asserted that it was the physician’s good
reputation in the hospital that led her to seek his services.
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http://www.uptodate.com

277

▸ THEFT
COUPLE IN 90S ALLEGE THEFT BY CAREGIVERS
Mann sees an empty spot where a treasured object once sat, and her eyes
fill with tears. The mantelpiece in her living room, which used to display
crystal vases and porcelain figurines. Her light-filled atrium, where small
marble animals peeked out from among the orchids.
—Tara Bahrampour, The Washington Post, May 12, 2016
Theft is the illegal taking of another person’s or organization’s property.
Patients at home and in healthcare facilities must be cautious of the potential
for unscrupulous persons to take their personal belongings. Healthcare
facilities, including home care agencies, must be alert to the potential threat of
theft by dishonest persons, such as caregivers, visitors, and trespassers. The
theft of patient valuables (e.g., cash, credit cards, jewelry, in-home valuables),
supplies, drugs, and medical equipment is substantial, and it costs healthcare
organizations millions of dollars each year.
The lengths to which thieves will go are listed here.
A report published in the Mayo Clinic Proceedings says hospital
workers have stolen drugs by siphoning medication from IV bags,
taking leftover pills meant for the trash, and tampering with their
patient’s syringes, which has led to six infectious disease outbreaks in
U.S. hospitals since 2004.
A Pennsylvania man is facing charges that he stole human skin worth
about $350,000 from a Philadelphia hospital over a period of nearly 2
years, police said.
Police received a report that two wallets and an iPad had been stolen
from a new mother’s room in the maternity ward of Langley Memorial
on March 30.
Foster said the thieves broke into at least one staff locker. They also
stole cash, clothing, cellphones, office supplies, and staff identification
badges, swipe cards, and personal alarms. After learning of the thefts,
the hospital deactivated those security items.
Medical Identity Theft
Medical identity theft is the unauthorized use or disclosure of patient
information. “Medical identity theft occurs when someone uses another
person’s name or insurance information to get medical treatment, prescription
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drugs, or surgery. It also happens when dishonest people working in a medical
setting use another person’s information to submit false bills to insurance
companies.” Thieves often use patient mail (e.g., credit card information,
bank statements, patient bills, checking account information) to obtain
information about the consumer, which they use to steal his or her identity for
financial gain.
To improve the efficiency and effectiveness of the healthcare system, HIPAA
included administrative simplification provisions that required DHHS to adopt
national standards for electronic healthcare transactions and code sets,
unique health identifiers, and security. At the same time, Congress recognized
that advances in electronic technology could erode the privacy of health
information. Consequently, Congress incorporated into HIPAA provisions that
mandated the adoption of federal privacy protections for individually
identifiable health information.
VA DRUG THEFTS PERSIST DESPITE NEW EFFORTS
Federal authorities have launched dozens of new criminal investigations into
possible opioid and drug theft by employees at Department of Veterans
Affairs hospitals, a new sign the problem is not going away despite new
prevention efforts.
—Hope Yen, The Washington Times, May 31, 2017
OR LOCKER ROOM THEFT
It all started in the operating room’s locker room. At first it was $2 from
someone’s wallet and $5 from another. It was sporadic at first, then the
frequency of the thefts increased. Employees began to look at one another
with suspicion. Finally, management was able to make a difficult decision. A
theft detection powder that cannot be easily washed off was dusted on some
of the money, and it was placed in a purse in an open locker. Greed finally
took over as the person’s thefts became more frequent and brazen. She
eventually took the money that was marked with the powder. Unaware that
the money had been dusted, the employee, an OR transporter responsible
for wheeling patients into and out of the OR on a stretcher, eventually went
to the hospital’s coffee shop to spend some of the money. When the cashier
noticed the greenish color on the thief’s hands, he realized that this was the
culprit who had been taking money from her coworkers, and he notified
administration. The transporter admitted to taking the money, not only from
the OR staff and her coworkers, but when she transported patients to and
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from their rooms, she would take money and other items from the patient’s
bedside cabinet. She admitted that patients were groggy when recently
anesthetized, and this made it easy for her to steal from them. The
employee was discharged without charges being pressed against her.
The legal and ethical issues swirling around this incident became a hot topic
for discussion among the OR staff. The potential impact on public relations
concerns mitigated the willpower of management to press charges.
More than 11 million records were reported breached in June 2016. “The bulk
of these record breaches were attributable to a single hacking incident that
included a large insurer database (10.3 million records).”
The HIPAA Breach Notification Rule, 45 CFR §§ 164.400-414, requires
HIPAA covered entities and their business associates to provide
notification following a breach of unsecured protected health information.
Similar breach notification provisions implemented and enforced by the
Federal Trade Commission (FTC), apply to vendors of personal health
records and their third party service providers, pursuant to section 13407 of
the HITECH Act.”
As required by section 13402(e)(4) of the Health Information Technology for
Economic and Clinical Health (HITECH) Act, the Secretary must post a list of
breaches of unsecured protected health information affecting 500 or more
individuals. These breaches are now posted in a new, more accessible format
that allows users to search and sort the posted breaches. Additionally, this
new format includes brief summaries of the breach cases that Office of Civil
Rights (OCR) has investigated and closed, as well as the names of private
practice providers who have reported breaches of unsecured protected health
information to the Secretary.
Regarding notification, the DHHS requires: (1) Individual Notice to individuals
whose data has been compromised in written form by first-class mail or email
if the affected individual has agreed to receive such notices electronically; (2)
Media Notice when a breach affects more than 500 residents of a state or
jurisdiction; and, (3) Notice to the Secretary of DHHS in addition to notifying
affected individuals and the media regarding breaches of unsecured protected
health information.
The Federal Trade Commission offers a brochure titled “Medical Identity
Theft,” at its website (www.consumer.ftc.gov) that can help the consumer
detect identity theft, correct mistakes in medical records, protect medical
information, and check for other identity theft concerns. Contact information for
credit reporting companies is also available at the site.
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http://www.consumer.ftc.gov

Theft of Drugs
Perhaps one of the most tempting and accessible crimes for a healthcare
professional involves the misuse or theft of drugs. Drugs can offer significant
financial gain when they fall into the hands of the wrong people. As noted in
Chia v. Ohio Board of Nursing, where the appellant licensed nurse took a
patient’s Percodan tablets for her own use, the appellant pled no contest and
was found guilty of theft of drugs and a felony of the fourth degree. The
licensing board mailed to the appellant a notice of immediate suspension and
opportunity for hearing. In that notice, the board informed the appellant that
her license was immediately suspended as a result of her felony drug abuse
conviction. The notice also informed the appellant that the board proposed
further sanctions to her license and that she was entitled to a hearing
regarding those sanctions if she requested one within 30 days. The appellant
did not respond to the notice.
Without having heard from the appellant, the board mailed her a letter
informing her that it would consider sanctions to her license at its regularly
scheduled meeting in May. At that meeting, the board permanently revoked
the appellant’s nursing license. The appellant appealed the board’s decision to
the court of common pleas. That court affirmed the board’s decision, finding
that it was supported by reliable, probative, and substantial evidence and was
in accordance with law. The board’s notice clearly informed the appellant that
her license was immediately suspended as a result of her felony drug
conviction.
Theft of Resident’s Money
The evidence presented in People v. Lancaster was found to have provided
a probable cause foundation for information charging felony theft of nursing
home residents’ money by the office manager. Evidence showed that on
repeated occasions, the residents’ income checks were cashed, or cash was
otherwise received on behalf of residents; that the defendant, by virtue of her
office, had sole responsibility for maintaining the residents’ ledger accounts;
and that frequently cash receipts were not posted to the residents’ accounts.
In another case, there was sufficient evidence in Miller v. Dunn to hold that
a nurse assistant had misappropriated $15,000 from an 83-year-old nursing
home resident. The record indicated that the funds were taken during those
times the resident made visits to the hospital for respiratory problems. The
patient had been diagnosed with dementia, and the resident’s confusion was
increasing. The nursing assistant actively procured the check in question,
filling in the date, amount, and her name as payee. As a result, the nursing
assistant was placed on the employee disqualification list for misappropriating
funds.
Commingling Resident’s Personal Funds
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Criminal charges of theft were imposed because of misapplication of property
in State v. Pleasant Hill Health Facility. The facility commingled the
residents’ personal funds (Social Security checks and personal allowances) in
a corporate account. There were times that the residents’ funds remained in
the corporate account for 3 to 6 months before being transferred to the
residents’ accounts, during which time the combined funds were used to pay
corporate expenses. The facility described its relationship with the residents as
debtor–creditor and not a trust relationship. The facility claimed that the funds
were always available to residents, and they were never denied a request for
their funds. The Maine Supreme Judicial Court held that the facility’s handling
of the residents’ funds was not a debtor–creditor relationship but a trust
relationship. Pleasant Hill’s commingling of patients’ personal need funds with
corporate funds and use of the combined funds to pay corporate expenses
constituted dealing with the money as its own and was a violation of the
corporation’s trust agreement. The facility argued that it ultimately transferred
all of the residents’ personal funds from a transfer account to the residents’
accounts. The court concluded that a violation had occurred at the moment the
residents’ personal funds were deposited without segregating them from the
corporation’s own funds.
THE COURT’S DECISION
The U.S. Court of Appeals for the Sixth Circuit determined that the physician
was found to have been properly convicted of healthcare fraud and making
false statements, arising from administration of partial doses of
chemotherapy medication while billing Medicaid and other insurance
programs for full doses. The appeals court also disagreed with the
defendant’s contention that the district court considered an inappropriate
factor when it heard testimony from family members.
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▸ CHAPTER REVIEW
1. The objectives of criminal law are to:
Maintain public order and safety
Protect individuals
Use punishment as a deterrent to crime
Rehabilitate criminals for return to society
2. A crime—a social harm defined and made punishable by law—is
generally either a misdemeanor or a felony.
A misdemeanor is an offense generally punishable by less than
1 year in jail and/or a fine.
A felony, however, is punishable by imprisonment in a state or
federal prison for a period of more than 1 year.
3. Criminal procedure involves
Arrest
Arraignment
Indictment
Conference
Criminal trial
4. Criminal trials involving healthcare professionals and organizations
include: healthcare fraud, kickbacks, false claims, tampering with
drugs, Internet pharmacy, falsification of records, patient abuse,
criminal negligence, manslaughter, murder, rape, sexual abuse, and
theft.
283

▸ REVIEW QUESTIONS
1. Discuss the objectives and classification of criminal offenses.
2. Discuss the criminal trial process.
3. Describe some of the more common criminal offenses that occur in
healthcare settings.
284

▸ NOTES
1. 513 F.3d 527 (C.A. 6. Tenn. 2008).
2. Stephen H. Gifis, Law Dictionary, at 118–119 (1975).
3. “Model Penal Code: Selected Provisions,”
http://www1.law.umkc.edu/suni/CrimLaw/MPC_Provisions/model_penal_code_default_rules.htm
4. No. 05AP-681 (Ohio App. 2006).
5. 295 U.S. 78, 88 (1935).
6. John Kaplan, Criminal Justice Introductory Cases and Materials (Eagan, MN:
Foundation Press, 1973), 228.
7. Id. at 259.
8. U.S. Department of Justice, “National Health Care Fraud Takedown Results in
Charges Against Over 412 Individuals Responsible for $1.3 Billion in Fraud
Losses,” https://www.justice.gov/opa/pr/national-health-care-fraud-
takedown-results-charges-against-over-412-individuals-responsible.
9. Federal Bureau of Investigation, “What We Investigate: Health Care Fraud,”
https://www.fbi.gov/investigate/white-collar-crime/health-care-fraud.
10. Id.
11. Office of the Inspector General, “About Us,” https://oig.hhs.gov/about-
oig/about-us/index.asp.
12. U.S. Department of Health and Human Services, “Stop Medicare Fraud,”
https://www.stopmedicarefraud.gov/aboutfraud/heattaskforce/.
13. Id. note 8.
14. U.S. Department of Health and Human Services, News Release, February 17,
2011.
15. U.S. Department of Justice, “National Health Care Fraud Takedown Results in
Charges against 301 Individuals for Approximately $900 Million in False
Billing,” June 22, 2016. https://www.justice.gov/opa/pr/national-health-
care-fraud-takedown-results-charges-against-301-individuals-
approximately-900.
16. Attorney General Eric Holder, “Attorney General Eric Holder Delivers
Remarks at the Johnson and Johnson Press Conference,” The United States
Department of Justice, November 4, 2013.
http://www.justice.gov/iso/opa/ag/speeches/2013/ag-speech-131104.html.
17. Carla K. Johnson and Sara Burnett, “$12 Million in Medicaid Funds Went to
Deceased in Illinois,” The Washington Post, April 20, 2014.
18. USA v. Farid Fata, No. 15-1935 (6th Cir. 2016).
285

http://www1.law.umkc.edu/suni/CrimLaw/MPC_Provisions/model_penal_code_default_rules.htm

https://www.justice.gov/opa/pr/national-health-care-fraud-takedown-results-charges-against-over-412-individuals-responsible

https://www.fbi.gov/investigate/white-collar-crime/health-care-fraud

https://oig.hhs.gov/about-oig/about-us/index.asp

https://www.stopmedicarefraud.gov/aboutfraud/heattaskforce/

https://www.justice.gov/opa/pr/national-health-care-fraud-takedown-results-charges-against-301-individuals-approximately-900

http://www.justice.gov/iso/opa/ag/speeches/2013/ag-speech-131104.html

19. ABC News, “A Healthy Dose of Fraud,”
http://www.peura.com/David/insurnce.htm.
20. 385 F.3d 1013 (C.A. 6, Ky. 2004).
21. 824 F.2d 780 (9th Cir. 1987).
22. 254 Ga. App. 297, 562 S.E.2d 201 (Ga. App. 2002).
23. 507 So. 2d 1254 (La. Ct. App. 1987).
24. 513 So. 2d 493 (La. Ct. App. 1987).
25. Id. at 495.
26. Banks v. Board of Pharmacy, 207 Cal. Rptr. 835 (Cal. Ct. App. 1984).
27. 821 F.2d 523 (10th Cir. 1987).
28. Id. at 529.
29. Id. at 530.
30. 322 S.E.2d 696 (N.C. Ct. App. 1985).
31. 726 N.Y.S.2d 188 (2001).
32. 513 F.3d 1293 (C.A. 11, Fla. 2008).
33. 760 F.2d 68 (3d Cir. 1985).
34. 871 F.2d 105 (9th Cir. 1989).
35. 366 F.2d 167 (6th Cir. 1966).
36. 265 U.S. 182, 188 (1924).
37. 874 F.2d 20 (1st Cir. 1989).
38. Robert Draper, “The Toxic Pharmacist,” The New York Times, June 8, 2003.
http://www.nytimes.com/2003/06/08/magazine/the-toxic-pharmacist.html?
mcubz=0.
39. 401 F.3d 53 (C.A. 2, N.Y. 2005).
40. Poor v. State, No. S-02-472, 266 Neb. 183 (Neb. 2003).
41. No. 02-6183 (C.A. 10, Okla. 2004).
42. Carolyn Davis, “Souderton Doctor Jailed with Son in ‘Pill Mill’ Case,” The
Philadelphia Inquirer, June 7, 2014. http://articles.philly.com/2014-06-
07/news/50390458_1_father-and-son-sentencing-motions.
43. Thomas Catan, “Con Artist Starred in Sting That Cost Google Millions,” The
Wall Street Journal, January 25, 2012.
http://online.wsj.com/news/articles/SB10001424052970204624204577176964003660658
44. 746 P.2d 1006 (Idaho Ct. App. 1987).
45. Gregg Zoroya, “VA Treatment Records Falsified, Probe Finds,” USA Today,
May 4, 2014. http://www.usatoday.com/story/news/nation/2014/05/04/va-
healthcare-delays-treatment-phoenix-cheyenne-deaths/8602117/.
46. 402 N.Y.S.2d 318 (N.Y. Sup. Ct. 1978).
286

http://www.peura.com/David/insurnce.htm

http://www.nytimes.com/2003/06/08/magazine/the-toxic-pharmacist.html?mcubz=0

http://articles.philly.com/2014-06-07/news/50390458_1_father-and-son-sentencing-motions

http://online.wsj.com/news/articles/SB10001424052970204624204577176964003660658

http://www.usatoday.com/story/news/nation/2014/05/04/va-healthcare-delays-treatment-phoenix-cheyenne-deaths/8602117/

47. Id. at 320.
48. Richard J.Gelles, Murray A. Strauss, and Suzabbe K. Steinmetz, Behind
Closed Doors: Violence in the American Family (New York, NY: Anchor
Books, 1981).
49. Id.
50. National Center on Elder Abuse, “Fact Sheet: Elder Abuse Prevalence and
Incidence,”
http://www.ncea.aoa.gov/resources/publication/docs/finalstatistics050331 .
51. 557 F. Supp. 289 (D. Colo. 1983).
52. Id. at 293.
53. 42 C.F.R. § 483.13 (1989).
54. “Nurse’s Aide Jailed for Punching Patient,” The Baltimore Sun, June 29, 1990,
§D, at 2.
55. 501 N.Y.S.2d 997 (N.Y. Sup. Ct. 1986).
56. Id. at 1001.
57. Id.
58. 556 A.2d 1 (Pa. Commw. Ct. 1989).
59. 559 N.Y.S.2d 417 (N.Y. App. Div. 1990).
60. 655 S.W.2d 522 (Mo. 1983).
61. Id.
62. 166 A.D. 913 (1990).
63. Id.
64. Id. at 573–574.
65. 121 Commonwealth Court 532 (1988).
66. Id. at 535.
67. Id. at 540.
68. State v. Cunningham, 493 N.W.2d 884 (Iowa Ct. App. 1992).
69. Id. at 887–888.
70. 486 So. 2d 101 (La. 1986).
71. Id. at 103.
72. Id.
73. Id. at 101, 104.
74. HuffPost/AP, Doctor at Boston’s Brigham and Women’s Hospital Dies after
Shooting, Suspect Dead,” January 20, 2015.
http://www.huffingtonpost.com/2015/01/20/gunman-boston-hospital-
shooting_n_6508430.html.
75. Majors v. Engelbrecht, 149 F.3d 709 (1998).
287

http://www.ncea.aoa.gov/resources/publication/docs/finalstatistics050331

http://www.huffingtonpost.com/2015/01/20/gunman-boston-hospital-shooting_n_6508430.html

76. Carolyn Collwell, “The Verdict of Angelo: Murder Found in 2 Deaths,”
Newsday, December 15, 1989. http://www.newsday.com/long-island/serial-
killer/the-verdict-on-angelo-murder-found-in-2-deaths-1.1875478.
77. 584 F. Supp. 302 (E.D. Va. 1984).
78. Id. at 305.
79. 246 Cal. Rptr. 915 (Cal. Ct. App. 1988).
80. Id. at 927.
81. 204 F.3d 815 (8th Cir. 2000).
82. 195 Cal. Rptr. 484 (Cal. Ct. App. 1983).
83. Owen Bowcott, “Surgeon convicted of patient manslaughter through
negligence,” The Guardian, November 5, 2013.
https://www.theguardian.com/uk-news/2013/nov/05/surgeon-convicted-
manslaughter-negligence-patient.
84. Alyssa Newcomb, “Oregon Doctor Charged in Patient’s Death From Botched
Tummy Tuck,” ABC News, August 29, 2012.
http://abcnews.go.com/Health/oregon-doctor-charged-death-botched-
cosmetic-surgery/story?id=17104454.
85. Brandon Lowry, “Former Encino Cosmetic Surgeon Charged in Patient’s
Death,” ABC News, August 20, 2013.
http://www.nbclosangeles.com/news/local/Former-Encino-Cosmetic-
Surgeon-Charged-in-Patients-Death-220456371.html.
86. Skeptical Scalpel, “Surgeon Convicted of Manslaughter for Delaying
Operation,” Physicians Weekly, November 18, 2013.
http://www.physiciansweekly.com/surgeon-convicted-manslaughter-
delaying-operation/.
87. Ned Berke, “Manhattan Beach Plastic Surgeon Charged With Manslaughter
After Liposuction Patient Dies On Table,” April 1, 2013.
http://www.sheepsheadbites.com/2013/04/manhattan-beach-plastic-
surgeon-charged-with-manslaughter-after-liposuction-patient-dies-on-
table/.
88. Clare Dyer, “Surgeon charged with manslaughter over kidney error,” BMJ,
September 15, 2001. http://www.bmj.com/content/323/7313/590.2.
89. “Family Neglected Woman to Death: Authorities,” Health News Florida, June
27, 2013. http://health.wusf.usf.edu/post/family-neglected-woman-death-
authorities.
90. “Doctor Charged in Pain Med Death,” Health News Florida, July 10, 2013.
http://health.wusf.usf.edu/post/doctor-charged-pain-med-death.
91. R. E. Ferner and Sarah E. McDowell, “Doctors Charged with Manslaughter in
the Course of Medical Practice, 1795–2005: A Literature Review,” Journal of
the Royal Society of Medicine, 99(6); (2006): 309–314.
92. No. 2002-CT-00556-SCT (Miss. 2004).
288

http://www.newsday.com/long-island/serial-killer/the-verdict-on-angelo-murder-found-in-2-deaths-1.1875478

https://www.theguardian.com/uk-news/2013/nov/05/surgeon-convicted-manslaughter-negligence-patient

http://abcnews.go.com/Health/oregon-doctor-charged-death-botched-cosmetic-surgery/story?id=17104454

http://www.nbclosangeles.com/news/local/Former-Encino-Cosmetic-Surgeon-Charged-in-Patients-Death-220456371.html

Surgeon Convicted of Manslaughter for Delaying Operation

http://www.sheepsheadbites.com/2013/04/manhattan-beach-plastic-surgeon-charged-with-manslaughter-after-liposuction-patient-dies-on-table/

http://www.bmj.com/content/323/7313/590.2

http://health.wusf.usf.edu/post/family-neglected-woman-death-authorities

http://health.wusf.usf.edu/post/doctor-charged-pain-med-death

93. “Earl Bradley,” https://en.wikipedia.org/wiki/Earl_Bradley.
94. Martha Neil, ABA Law Journal, April 19, 2010.
95. American Congress of Obstetricians and Gynecologists, “Committee Opinion:
Sexual Assault,” http://www.acog.org/Resources-And-
Publications/Committee-Opinions/Committee-on-Health-Care-for-
Underserved-Women/Sexual-Assault.
96. 520 N.E.2d 139 (Mass. 1988).
97. Cathy Puleo, “6 infectious disease outbreaks linked to hospital drug thefts:
Patients at high risk,” Healthcare Business and Technology, June 11, 2014.
http://www.healthcarebusinesstech.com/infectious-disease-outbreaks/.
98. Jonathan Allen, “Pennsylvania Man Accused in Theft of Human Skin from
Hospital,” Reuters, May 30, 2014. http://news.yahoo.com/pennsylvania-
man-accused-theft-human-skin-hospital-190051628.html.
99. “Thief Targets Mother in Langley Hospital Maternity Ward,” CBC News, April,
17, 2013, http://www.cbc.ca/news/canada/british-columbia/thief-targets-
mother-in-langley-hospital-maternity-ward-1.1323284.
100. Trevor Wilheim, “Police Make Arrest in Windsor Regional Hospital Thefts,”
The Windsor Star, January 29, 2014.
http://blogs.windsorstar.com/2014/01/29/windsor-regional-hospital-
targeted-again-by-thieves/.
101. Federal Trade Commission, “Medical Identity Theft: FAQs for Health Care
Providers and Health Plans,” https://www.ftc.gov/tips-advice/business-
center/guidance/medical-identity-theft-faqs-health-care-providers-health-
plans.
102. HHS.gov, “HIPAA for Professionals,” Reviewed June 16, 2017.
https://www.hhs.gov/hipaa/for-professionals/index.html.
103. Kira Caban, “Monthly Breach Barometer: Staggering 11 Million Patient
Records Breached,” July 5, 2016. http://www.protenus.com/blog/breach-
barometer-june.
104. HHS.gov, “Breach Notification Rule,” Reviewed July 26, 2013.
https://www.hhs.gov/hipaa/for-professionals/breach-
notification/index.html.
105. U.S. Department of Health and Human Services, Office for Civil Rights,
“Breach Portal: Notice to the Secretary of HHS Breach of Unsecured
Protected Health Information,”
https://ocrportal.hhs.gov/ocr/breach/breach_report.jsf.
106. Id. note 104.
107. No. 04AP-143 (Ohio App. 2004).
108. 683 P.2d 1202 (Colo. 1984).
109. 184 S.W.3d 122 (Mo. App. 2006).
289

https://en.wikipedia.org/wiki/Earl_Bradley

http://www.acog.org/Resources-And-Publications/Committee-Opinions/Committee-on-Health-Care-for-Underserved-Women/Sexual-Assault

http://www.healthcarebusinesstech.com/infectious-disease-outbreaks/

http://news.yahoo.com/pennsylvania-man-accused-theft-human-skin-hospital-190051628.html

http://www.cbc.ca/news/canada/british-columbia/thief-targets-mother-in-langley-hospital-maternity-ward-1.1323284

http://blogs.windsorstar.com/2014/01/29/windsor-regional-hospital-targeted-again-by-thieves/

https://www.ftc.gov/tips-advice/business-center/guidance/medical-identity-theft-faqs-health-care-providers-health-plans

https://www.hhs.gov/hipaa/for-professionals/index.html

http://www.protenus.com/blog/breach-barometer-june

https://www.hhs.gov/hipaa/for-professionals/breach-notification/index.html

https://ocrportal.hhs.gov/ocr/breach/breach_report.jsf

110. 496 A.2d 306 (Me. 1985).
290

© Jerry Silwowski/Shutterstock
291

CHAPTER 7
Contracts and Antitrust
IT’S YOUR GAVEL…
BREACH OF CONTRACT: BLOOD TRANSFUSION
Harvey was diagnosed with blockage in his carotid artery. Dr. Strickland
recommended a surgical procedure. In anticipation of surgery, Harvey
signed written forms entitled, “Refusal of Treatment, Release from Liability”
and “Consent to Operation.” The documents indicated that Harvey refused
to have blood or blood products given to him and that he fully understood
the attendant risks. The documents stated: “In all probability, my refusal for
such treatment, medical intervention, and/or procedure (may)(will) seriously
imperil my health or life.” Hospital forms list Harvey’s mother, Julia, as his
emergency contact. The day before his surgery, Harvey signed another
consent form indicating that he would not give permission to the doctor to
use blood or blood products, even if it became necessary to administer
blood.
Surgery was performed and appeared to have gone well. Harvey, however,
later developed a blood clot and had a stroke while in the recovery room.
Because Harvey was unconscious, hospital personnel located his mother in
the waiting room and obtained her permission to perform a computed
tomography (CT) scan and arteriogram. A second surgery was performed,
and more blood clots were removed along the side of the carotid artery.
Harvey was moved to the intensive care unit (ICU). He was intubated that
evening by the on-call emergency room physician after the ICU nurse
discovered Harvey was having trouble breathing. The next day, Harvey
began bleeding from the surgical site and had lost approximately 30% of his
blood volume. His heart rate was extremely high, and Dr. Strickland was
concerned that if they could not get the heart rate down, Harvey would have
a heart attack and die. When his hemoglobin level reached 8, Dr. Strickland
recommended a blood transfusion to Harvey’s mother, Julia, who initially
declined because of her son’s faith as a Jehovah’s Witness. Ultimately, Julia
consented to giving Harvey two units of blood. Harvey recovered fully from
the procedures and later sued. Harvey filed a lawsuit against Dr. Strickland
after receiving the unwanted blood. The lawsuit claimed breach of contract,
lack of informed consent, medical malpractice, and medical battery. The trial
292

court directed a verdict for Dr. Strickland. Harvey appealed the court’s
decision.
WHAT IS YOUR VERDICT?
1
293

▸ LEARNING OBJECTIVES
The reader, upon completion of this chapter, will be able to:
Explain what a contract is.
Describe the elements of a contract.
Describe how a hospital can be liable for the acts of a physician under
contract.
Explain the possible defenses and remedies for nonperformance of a
contract.
Describe under what circumstances an employee handbook could be
considered a contract and how to avoid that assumption.
This chapter provides the reader with a general understanding of the purpose,
types, elements, and importance of contracts as they pertain to healthcare
organizations and caregivers. Attention also is given to the defenses and legal
remedies for nonperformance of a contract.
294

▸ WHAT IS A CONTRACT?
A contract is a special kind of voluntary agreement, either written or oral, that
involves legally binding obligations between two or more parties. A contract
serves to provide one or more of the parties with a legal remedy if another of
the parties does not perform his or her obligations pursuant to the terms of the
contract. The major purpose of a contract is to specify, limit, and define the
agreements that are legally enforceable. A contract forces the participants to
be specific in their understandings and expectations of each other. Contracts,
particularly those in writing, serve to minimize misunderstandings and offer a
means for the parties to a contract to resolve any disputes that may arise.
295

▸ TYPES OF CONTRACTS
The following is a general description of the various types of contracts and a
brief definition of each. Healthcare professionals should be knowledgeable
about each type of contract because they are used commonly in the
healthcare setting.
Express Contracts
An express contract is one in which the parties have an oral or written
agreement. Both written and oral contracts are generally recognized and are
equally legal and binding.
Oral Contract. A court will not consider oral negotiations and agreements
made before or at the same time a written contract is signed if the parties
intended the document to be their complete and final agreement. Both
written and oral contracts are generally recognized and are equally legal
and binding.
Written Contract. It is preferable to reduce important and complex contracts
to writing. In certain instances, the courts will enforce only written
contracts.
Implied Contract
An implied contract is one that is inferred by law. It is based on the conduct of
the parties, such as a handshake or similar conduct. Much of the litigation
concerning excesses of corporate authority involves questions of whether a
corporation has the implied authority—incidental to its express authority—to
perform a questioned act. In Hungerford Hosp. v. Mulvey, for example, even
though its certificate of incorporation did not authorize the hospital to construct
a medical office building, the hospital was permitted to construct the building
on land that had been donated for maintaining and operating the hospital. The
court, in recognizing a trend to encourage charitable hospitals to provide
private offices for rental to staff members, held that such an act was within the
implied powers of the hospital and that such offices aid in the work of a
general hospital even though it went beyond the hospital corporation’s express
powers.
Voidable Contract
A voidable contract is one in which one party, but not the other, has the right to
escape from its legal obligations under the contract. It is considered to be a
voidable contract at the option of that party. For example, a minor, not having
the capacity to enter into a contract, can void the contract. However, the
competent party to the contract may not void the contract. Contracts involving
fraud or where one party to the contract is incapacitated, not legally of sound
mind, or under undue influence or duress are voidable contracts.
2
296

Executed Contract
An executed contract is one in which all the terms and obligations of the
parties to the contract have been fully performed.
Enforceable Contract
An enforceable contract is one that is a valid, legally binding agreement. If one
party breaches it, the other will have an appropriate legal remedy.
Unenforceable Contract
An unenforceable contract is one in which, because of some defect, no legal
remedy is available if breached by one of the parties to the contract.
Contracts for Realty, Goods, or Services
There are also contracts for realty (a contract for the purchase and sale,
exchange, or other conveyance of real estate), goods (movable objects, with
the exception of money and securities), and services (human energy).
297

▸ ELEMENTS OF A CONTRACT
Whether contracts are executed in writing or agreed to orally, they must
contain the following elements to be enforceable: (1) offer/communication, (2)
consideration, and (3) acceptance.
The law will enforce contracts only when they are executed between persons
who are competent—that is, those with the legal and mental capacity to
contract. Certain classes of persons, such as minors, people with mental
illness, and prisoners, traditionally have been considered unable to understand
the consequences of their actions and have been deemed incompetent, or
lacking in legal capacity, to make a binding contract.
Offer/Communication
An offer is a promise by one party to do (or not to do) something if the other
party agrees to do (or not do) something. Preliminary negotiations are not
offers. An offer must be communicated to the other party so that it can be
accepted or rejected.
Consideration
Consideration requires that each party to a contract give up something of
value in exchange for something of value. No side can have a free way out or
the ability to obtain something of value without providing something in
exchange. Only when legal consideration has been given will a court treat the
agreement as a contract. The adequacy or inadequacy of consideration, or the
price paid, normally will not affect the formation of a contract.
Acceptance
Upon proper acceptance of an offer, a contract is formed. A valid acceptance
requires the following:
1. Meeting of the Minds. Acceptance requires a meeting of the minds
(mutual assent); in other words, the parties must understand and agree
on the terms of the contract. This means that each side must be clear
as to the details, rights, and obligations of the contract.
2. Definite and Complete. Acceptance requires that mutual assent be
found between the parties. The terms must be so complete that both
parties understand and agree to what has been proposed.
3. Duration. Generally, the offeror (the one who makes the offer) may
revoke an offer at any time prior to a valid acceptance. When the
offeror does revoke the proposal, the revocation is not effective until
the offeree (the person to whom the offer is made) receives it. Once
the offeree has accepted the offer, any attempt to revoke the
agreement is invalid.
298

4. Complete and Conforming. The acceptance must be a mirror image of
the offer. In other words, the acceptance must comply with all the
terms of the offer and not change or add any terms, unless agreed
upon by both parties.
299

▸ BREACH OF CONTRACT
A breach of contract occurs when there is a violation of one or more of the
terms of the contract. The basic elements that a plaintiff must establish in
order to be successful in a breach of contract lawsuit are: (1) a valid contract
was executed; (2) the plaintiff performed as specified in the contract; (3) the
defendant failed to perform as specified in the contract; and, (4) the plaintiff
suffered an economic loss as a result of the defendant’s breach of contract.
300

▸ CORPORATE CONTRACTS
The ability of a corporation to enter into a contract is limited by its powers as
contained in or inferred from its articles of incorporation (sometimes called a
charter) or conferred upon it by general corporation law. Whenever a contract
of any consequence is made with a corporation, appropriate corporate
approval and authorization must be obtained. In the event that a contract is
entered into with a corporation without the appropriate authority, the contract
nevertheless may be ratified and made binding on the corporation by
subsequent conduct or statements made on its behalf by its representatives.
When the chief executive officer (CEO) exceeds his limits of authority to
execute a contract on behalf of the organization, the question arises as to who
will be responsible for the costs of the contract. If the actions of the governing
body give rise to a third party’s reasonable belief that the CEO acts with the
authority of the organization, and such belief causes the third party to enter
into an agreement with the CEO, expecting that the organization will be
obligated under the contract, the organization generally is responsible under
the concept of apparent authority, which is the appearance of being the agent
of another (employer or principal) with the power to act for the principal.
However, if a third party deals with the CEO in the absence of indications of
the CEO’s authority created by the governing body and thereby unreasonably
assumes that the CEO possesses the authority to bind the organization to a
contract, then such third party deals with the CEO in an individual capacity and
not as an agent of the organization.
Although there can be times when a CEO makes a decision that exceeds his
or her authority, the governing body may subsequently approve such actions
through ratification by accepting any resulting responsibility as though it had
been authorized previously. Conversely, if the governing body, for example,
has set a limitation on the amount of funds a CEO is authorized to expend on
a capital budget item and the CEO exceeds that authorization, he could be
held liable to the supplier for that purchase, if so made without prior approval
of the governing body.
Physician Contracts
Hospitals have traditionally contracted with physician groups to provide
specialty coverage in the emergency department, radiology, and anesthesia
services, and hospital-operated out-patient clinics. It has been estimated that
there are as many as 31,000 hospital-employed physician hospitalists caring
for inpatients. Statistics show that “One-in-four medical practices is now
owned by a hospital or health system, and hospitals employed 38% of all U.S.
physicians in 2015. ‘That’s a 50% increase between 2012 and 2015, growing
from 95,000 employed physicians in 2012 to more than 140,000 employed
physicians in 2015.’ ” Physicians continue to lose medical independence and
3
4
301

more costly hospital care. Physicians are increasingly seeking hospital
employment to improve their lifestyle by having more control over working
hours and to lessen their financial worries of maintaining a practice (e.g.,
malpractice insurance, government regulations, and the high costs associated
with the day-to-day functioning of an office).
302

▸ PARTNERSHIP
A partnership comprises two or more persons who agree to carry on a
business for profit and to share profits and losses in some proportion.
According to Black’s Law Dictionary, a partnership is “A voluntary contract
between two or more competent persons to place their money, effects, labor,
and skill, or some or all of them, in lawful commerce or business, with the
understanding that there shall be a proportional sharing of the profits and
losses between them.” A partnership, unlike a corporation, can be created by
the parties’ actions without a written or oral agreement.
The Uniform Partnership Act, which has been adopted by most states,
describe a partnership and partnership agreement as follows:
(6) “Partnership” means an association of two or more persons to carry on
as co-owners a business for profit formed under Section 202, predecessor
law, or comparable law of another jurisdiction.
(7) “Partnership agreement” means the agreement, whether written, oral,
or implied, among the partners concerning the partnership, including
amendments to the partnership agreement.
There are a variety of partnerships in the healthcare industry, such as those
between physicians when forming a physician general practice or specialty
group. Hospital–physician partnerships can take the form of a joint venture,
such as a freestanding ambulatory surgery center.
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▸ AGENT
An agent is one who has the power to contract for and bind another person,
the principal, to a contract. Corporations can act only through agents (e.g.,
their officers). An apparent or ostensible agent is one who a third person
believes is acting on behalf of the principal. If a hospital undertakes to provide
physician services to a community and the community reasonably believes
that a physician is employed by the hospital to deliver services, then the
hospital would generally be liable for the physician’s negligent acts. For
example, in Jennison v. Providence St. Vincent Med. Ctr., Jennison, having
severe abdominal pain, was taken to the hospital emergency department.
Unsure of the cause of Jennison’s medical problems, Cook, Jennison’s
assigned physician, recommended surgery. Prior to surgery Cook asked
Nunez, a member of an independent anesthesiology group at the hospital, to
place a central venous catheter in Jennison.
An X-ray had been taken to confirm the correct placement of the central line.
The X-ray showed that the tip of the central line had gone into the pericardial
sac of Jennison’s heart. A procedure had not been established to notify the
treating physicians in a timely manner that the central line had been
dangerously misplaced.
Upon the eventual discovery that the central line had been misplaced, it was
pulled back to its proper position. Unfortunately, fluids had already infused
through the central line and into the space between Jennison’s heart and
pericardial sac. The pressure of the fluid against her heart kept it from filling
adequately. Jennison’s blood pressure dropped, and she went into cardiac
arrest. The doctors attempted to remove the excess fluid. During the
procedure, Jennison suffered a second cardiac arrest. The doctors were again
able to resuscitate her. However, due to the lack of oxygen to her brain,
Jennison suffered a severe brain injury.
The jury returned a verdict in favor of the plaintiffs, finding the hospital 100%
negligent, and the hospital appealed. The Court of Appeals of Oregon affirmed
the findings of the trial court. The hospital presented itself as providing
radiology services to the public. The public, looking to the hospital to provide
such care, is unaware of and unconcerned with the technical complexities and
nuances surrounding the contractual and employment arrangements between
the hospital and the various medical personnel operating therein. Public policy
dictates that the public has every right to assume and expect that the hospital
is the medical provider it purports to be.
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▸ INDEPENDENT CONTRACTOR
An independent contractor is an individual who agrees to undertake work
without being under the direct control or direction of another. Independent
contractors are personally liable for their own negligent acts. Whether a
physician is an employee or an independent contractor is of primary
importance in determining liability for damages. Generally, a healthcare
organization is not liable for injuries resulting from negligent acts or omissions
of independent physicians. There is no liability on the theory of respondeat
superior, whereby a physician is an independent contractor as long as the
physician is not an employee of the organization, is not compensated by the
organization, maintains a private practice, and is chosen directly by his or her
patients. The mere existence of an independent contractual relationship,
however, is not sufficient to remove an organization from liability for the acts of
certain of its professional personnel if the independent contractor status is not
readily known to the injured party as noted in Mduba v. Benedictine Hospital
next.
Hospital Liable for Physician’s Negligence
A hospital can be liable for a physician’s negligence, even if the physician is
under contract to provide services to the hospital. The appellate division of the
New York State Supreme Court in Mduba v. Benedictine Hospital held that
the hospital was liable for the emergency department physician’s negligence
whether the physician was an independent contractor or, even if under
contract, the physician was considered to be an independent contractor. The
court held that the patient had no way of knowing of the existence of a contract
and relied on the relationship between the hospital and the physician in
seeking treatment in the emergency department.
Agency Not Liable for Negligent Hiring
The employer, Patient Support Services, Inc. (PSS), in Maristany v. Patient
Support Services, Inc., was found not liable for negligent hiring for injuries
received by a patient under the care of one of its independent contractors. By
contract dated January 29, 1994, the plaintiff retained the services of PSS to
furnish an independent nurse, Terry, to care for her husband, Santiago, a
postoperative brain surgery patient at defendant Presbyterian Hospital.
At approximately 10:00 PM, Terry assisted a hospital nurse in placing
Santiago into a Posey-restraining vest. At approximately 3:30 AM, Terry
returned from a break to find Santiago extremely agitated. Terry sought
assistance and tried to restrain the patient physically, but the patient escaped
from the vest, climbed over the rails, and fell to the floor, sustaining serious
injury.
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The plaintiffs did not contest that Terry’s status was that of an independent
contractor rather than an employee. Although an employer is generally not
liable for the torts or negligent acts of an independent contractor under the
doctrine of respondeat superior, the employer had a right to rely on the
supposed qualifications and good character of the contractor and is not bound
to anticipate misconduct on the contractor’s part. The employer is not liable on
the ground of its having employed an incompetent or otherwise unsuitable
contractor unless it also appears that the employer either knew or, in the
exercise of reasonable care, should have ascertained that the contractor was
not properly qualified to undertake the work.
There was no competent proof that PSS had any reason to question Terry’s
qualifications. At the time of the incident, Terry had had her qualifying
certificate for more than 10 years. She had received training in the use of
Posey restraints and had previously cared for patients whose condition
required these restraints. Because Terry had previously worked for PSS and
had not given any indication of incompetence, there was no viability to the
claim that PSS was negligent in assigning her to the care of Santiago.
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▸ CONDITIONS
A condition to a contract is an act or event that must happen or be performed
by one party before the other party has any responsibility to perform under the
contract. An express condition is formally written into the contract in specific
terms. An implied condition is one in which, although the parties may not have
specifically mentioned the condition, it can reasonably be assumed that the
parties intended the condition to be enforced.
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▸ PERFORMANCE
Performance is the act of doing what is required by a contract. Each party to a
contract is bound to perform the promises according to the stipulated terms
contained in the contract. The effect of successful performance by each party
to a contract is to discharge the parties bound to the contract from any future
contractual liability.
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▸ NONPERFORMANCE DEFENSES
Under some circumstances, the law gives a person a right not to perform
under a contract. Defenses permitting nonperformance of a contract include
fraud, mistakes, duress, illegal contract, impossibility, and statute of
limitations.
Fraud
A victim of fraud is not generally required to perform the agreed upon terms of
a contract. Contract fraud occurs when at least one party in a contract
knowingly misrepresents a material fact contained in the contract and intends
that the other party rely on that misrepresentation. The second party must rely
on the misrepresentation and suffer some damage before being excused from
performing under the terms of the contract.
Mistakes of Fact and Law
A party to a contract is permitted to claim a mistake in fact or law in a contract
as a defense under certain instances. There are two types of mistakes:
mistake of fact and mistake of law. A mistake of fact is a mistaken belief that
certain facts are true. Both parties must have made the mistake. If only one is
in error (and it is not known to the other), mistake of fact is not generally a
defense. Mistake of law, on the other hand, is an incorrect judgment of the
legal consequences of the known facts. If the parties to a suit make a mistake
as to the law involved, they must accept their plight without any remedy.
Duress
Duress is the use of unlawful threats or pressure to force an individual to act
against his or her will. An act performed under duress is not legally binding.
Illegal Contract
An illegal contract is a contract whose formation, object, or performance is
against the law or contrary to public policy that no court will uphold or enforce.
No individual can recover damages when a contract is formed for illegal
purposes. A contract must not violate the law. To be a valid contract, the
purpose or object (purpose or design) of the contract must not violate state or
federal policy and must not violate any statute, rule, or regulation. If the
subject or purpose of a contract becomes illegal by some statute, rule, or
regulation before actual formation of the contract, the contract is invalid. For
example, the transference of property with the object of defrauding another is
an unenforceable contract.
Impossibility to Perform
Contracts can become impossible to perform because (1) certain facts might
have existed at the time the contract was executed or (2) they might have
arisen subsequent to the formation of the contract. Contracts that are
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impossible to perform do not have to be carried out by the parties to a
contract. A promise to perform a contract becomes impossible when, for
example, the work to be performed is impossible to complete the terms of the
contract because of a natural disaster or the law has changed, thus making
performance of the work agreed upon illegal.
Statute of Limitations
A party who does not, within a timely period set by statute (statute of
limitations), take action to enforce contract rights by suing for damages caused
by a breach of contract can be barred from doing so.
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▸ REMEDIES
What can a party do when another has breached the contract and refuses to
or cannot perform? The general rule is that legal redress will attempt to make
the injured party whole again.
Specified Performance
When an aggrieved party has subsequently complied with his or her
obligations pursuant to the agreed upon terms of a contract, that party might
seek specific performance as a remedy from the other party to the contract
rather than monetary remuneration. The most satisfactory remedy available to
an injured party may be to require specific performance by the other party to
the contract.
Monetary Damages
Monetary damages, sometimes called compensatory damages, are awarded
in an attempt to restore to the aggrieved party the money that it would have
had if the other party had not breached the contract. This can include the cost
of making a substitute contract with another party and the expense of delays
caused by the breach.
General and Consequential Damages
General damages are those that can be expected to arise from a breach of a
contract. The damages incurred must be foreseeable and common in the
circumstances. Consequential damages are those that occur because of some
unexpected, unusual, or strange development involved in the particular
contract in dispute. The distinction between the two types is one of
foreseeability. If it is found that the party who breached the contract could
have foreseen the damages that followed, that person could be liable for
consequential as well as general damages.
Duty to Mitigate Damages
When a party to a contract has breached the terms of a contract, the other
party cannot stand idly by and let damages build indefinitely. Every injured
party has a duty to mitigate (lessen) damages caused by the breach of
another person or entity. Failure to do so will prevent the aggrieved party’s
recovery of damages that could have been mitigated.
Arbitration
Under the modern view of contract law, agreements in contracts to arbitrate
subsequent disputes are valid.
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▸ EMPLOYMENT CONTRACTS
An employment contract is a written document that sets forth the terms of the
employment relationship. Such contracts are binding on both the employer
and employee so long as the contract has been executed in a legal manner.
The conditions of employment, including wages, hours, and type of work, are
generally described in an employment contract. Depending on the level of
employment and the responsibility of the new employee, the conditions of
employment should include the terms of employment, the duties and
responsibilities of the employee, compensation, confidentiality requirements
(e.g., trade secrets and proprietary information), a noncompete clause, and
provisions for termination of the agreement (e.g., an inability to perform one’s
duties and responsibilities).
A contract can be express or implied. Most employees work under
employment contracts. For example, if an employee signs a document
promising to abide by company policy and procedures, it likely constitutes an
employment contract. Certain categories of employees (e.g., radiologists)
often have the ability to negotiate their employment contracts. An employer’s
right to terminate an employee can be limited by express agreement with the
employee or through a collective bargaining agreement to which the employee
is a beneficiary.
The rights of employees have been expanding through judicial decisions in
different states. Court decisions have been based on verbal promises,
historical practices of the employer, and documents, such as employee
handbooks, job descriptions, and administrative policy and procedure manuals
that describe employee rights.
A job description is not intended to be an employment contract, nor does it
dissolve the at-will employment relationship. It is a record of the basic
purpose, typical level of authority, typical source of action, and representative
function or duties of the job. It is designed to provide management and others
with a clear understanding of the level of the job and its working relationships,
skills, and requirements in relation to other jobs.
Employee Breaches Contract: Repayment of Tuition Required
The registered nurse in Sweetwater Hosp. Ass’n v. Carpenter was found to
have breached her contract with the hospital under which the hospital agreed
to pay for her schooling as a nurse anesthetist in exchange for her agreeing to
work for the hospital for 5 years following completion of her studies. The nurse
agreed that if she failed to work at the hospital following completion of her
studies, she would be responsible for cash advances by the hospital plus
interest. Upon completion of her studies, the nurse sought employment
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elsewhere because it appeared to her that there were no nurse anesthetist
positions available at the hospital.
As consideration for the loan, the contract provided that the defendant agreed
to become or remain an employee of the hospital. The contract did not state in
what capacity the defendant would become or remain an employee. There
was nothing in the language of the contract stating that the hospital had an
obligation to offer the defendant a nurse anesthetist position.
In this case, there was no proof by the defendant that the hospital breached
the contract. The defendant breached her own contract by taking a job
elsewhere without specifically getting proof that she was not going to be
offered a job by the hospital. The defendant did not present herself for
employment at the hospital after graduation. She accepted a position
elsewhere. Because she did not accept employment at the hospital, she was
not entitled to rely upon the forgiveness provisions contained in the contract.
She was, therefore, obligated to repay the hospital.
Geographic Limitations on Practice Reasonable
The provisions of a covenant prohibiting the plaintiff in Thompson v. Nason
Hosp., a pediatrician, from practicing pediatric medicine for a period of 2
years within a 10-mile radius of the defendant’s office, and prohibiting her for a
period of 1 year from soliciting patients of the defendant, were found to be
reasonable as to both duration and geographic area. When the plaintiff
entered into the employment contract, she agreed to be bound by the
restrictive covenants in the event that her employment should end. The
defendant had the right to terminate the plaintiff’s employment for any reason
whatsoever or for no reason upon 60 days’ written notice to the plaintiff.
No Express Agreement: Right to Terminate
No express agreement was found to exist in O’Connor v. Eastman Kodak
Co., in which the court held that an employer had a right to terminate an
employee at will at any time and for any reason or no reason. The plaintiff did
not rely on any specific representation made to him during the course of his
employment interviews nor did he rely on any documentation in the employee
handbook, which would have limited the defendant’s common law right to
discharge at will. The employee had relied on a popular perception of Kodak
as a “womb-to-tomb” employer.
Restrictive Covenant Enforceable
The plaintiff-hospital, in Sarah Bush Lincoln Health Ctr. v. Perket, sued its
former director of physical medicine and rehabilitation to enforce a restrictive
covenant in the employment contract precluding the director from accepting
similar employment in the same county within 1 year of termination of
employment. The parties to the complaint entered into a contract whereby the
defendant was employed as the plaintiff’s director of physical medicine. The
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contract provided that during the director’s employment and for a period of 1
year thereafter, the director would not, directly or indirectly, invest in, own,
manage, operate, control, be employed by, participate in, or be connected in
any manner with the ownership, management, operation, or control of any
person, firm, or corporation engaged in competition with the hospital in
providing health services or facilities within Coles County, including the
provision of services in a private office, without prior written consent of the
hospital. Following the termination, the defendant engaged in the business of
providing physical medicine and rehabilitation services in Coles County. The
plaintiff argued that unless the defendant was enjoined, the hospital would
suffer irreparable injury. The circuit court granted the hospital’s motion for
preliminary injunction.
On appeal, the Illinois Appellate Court held that the grant of the preliminary
injunction was proper and that the defendant was engaging in the business of
providing physical medicine and rehabilitation services in Coles County. By
hiring the defendant, the hospital was thereby bringing him in contact with a
clientele that the hospital had established over a period of years. The hospital
was naturally interested in protecting its clients from being taken over by the
defendant as a result of these contacts.
Restrictive Covenant Not Enforceable
Not every restrictive covenant is enforceable; for example, a restrictive
covenant in an employment contract between a hospital and neurosurgeon
was found to be geographically too restrictive, whereby the neurosurgeon was
not to practice within a 30-mile radius of the hospital. This restriction was
determined to be excessive. Such a restriction was considered to be
detrimental to public interest in that the restricted area was plagued with a
shortage of neurosurgeons.
A restrictive covenant in an employment contract between a hospital and a
physician is not per se unreasonable and unenforceable. Under the
circumstances of this case, however, the geographic restrictive area is
excessive and must be reduced to avoid being detrimental to the public
interest. In addition, because the two-year period for the restrictive
covenant in this case has expired, the request for injunctive relief is moot.
The reader should understand that employment contracts that contain a
restrictive covenant between a physician and a hospital, although not favored,
are not per se unreasonable and unenforceable. The trial court must
determine whether the restrictive covenant protects the legitimate interests of
the employer, imposes no undue hardship on the employee, and is not
adverse to the public interest.
In another case, the restrictive covenant in Comprehensive Psychology
System P.C. v. Prince, limiting the ability of a psychologist from practicing
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his profession within 10 miles of his former employer’s facility and from
soliciting any of his patients, was determined not to be enforceable. The
nature of the practice of psychology and the uniquely personal patient–
psychologist relationship forbid restrictions that might interfere with an ongoing
course of treatment. A psychologist who changes his office location, voluntarily
or involuntarily, has a duty to inform patients of the change and the new
location and phone number. To do otherwise may be akin to abandonment.
Before unilaterally withdrawing from treating a patient, a doctor must provide
reasonable notice of withdrawal to enable the patient to obtain substitute care.
The limitations the plaintiff seeks to enforce against the defendant interfere
with a critical patient–psychologist relationship and with the right of the patient
to continued treatment from that psychologist.
Employee Handbook: A Contract
In order for an employee handbook to constitute a contract, thereby giving
enforceable rights to the employee, the following elements must be present:
1. A policy statement that clearly sets forth a promise that the employee
can construe to be an offer.
2. The policy statement must be distributed to the employee, making him
or her aware of the offer.
3. After learning about the offer and policy statement, the employee must
“begin” or “continue” to work.
The plaintiff-employee in Weiner v. McGraw-Hill brought suit against his
employer for wrongful termination. The plaintiff allegedly was discharged
without just and sufficient cause or the rehabilitative efforts specified in the
defendant’s handbook and allegedly promised at the time the plaintiff accepted
employment. Furthermore, on several occasions when the plaintiff
recommended that certain of his subordinates be dismissed, he allegedly was
instructed to proceed in strict compliance with the handbook and policy
manuals. The court held that although the defendant did not engage the
plaintiff for a fixed term of employment, the plaintiff pleaded a good cause of
action for breach of contract. Even the employment application that the plaintiff
signed at the time of employment stated that he would be subject to the
provisions of McGraw-Hill’s Handbook on Personnel Policies and Procedures.
BREACH OF EMPLOYMENT CONTRACT
Citation: Dutta v. St. Francis Reg’l Med. Ctr., 850 P.2d 928 (Kan. Ct. App.
1993)
Facts
On July 1, 1987, Dr. Dutta, a radiologist, began working in the radiology
department of the hospital as an employee of Dr. Krause, the medical
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director of the hospital’s radiology department. On August 5, 1988, the
hospital terminated Krause’s employment as medical director. On August 8,
1988, Dutta and the hospital entered into a written employment contract with
a primary term of 90 days. The contract provided that if a new medical
director had not been hired by the hospital within the 90-day period, the
agreement was to be automatically extended for a second 90-day period.
Following a period of recruitment and interviews, the hospital offered Dr. Tan
the position. Tan and the hospital executed a contract making him the
medical director of the radiology department. The contract granted Tan the
right “to provide radiation oncology services on an exclusive basis subject to
the exception of allowing Dutta to continue her practice of radiation oncology
at the hospital.” On April 24, 1989, the hospital notified Dutta that the 90-day
contract had expired and that Tan was appointed as the new medical
director. The letter provided in part:
It is our intent at this time to establish an exclusive contract with Dr.
Donald Tan for medical direction and radiation therapy at SFRMC. Your
medical staff privileges to practice radiation therapy at SFRMC will not
be affected by this action. You will be allowed to maintain your current
office space for radiation oncology activities; however, you should make
alternative arrangements for your billing and collection activities. [Id. at
931]
Dutta and Tan then practiced independently of each other in the same
facility. On October 13, 1989, Tan became unhappy with this arrangement
and requested exclusive privileges, stating he could not continue as medical
director without exclusivity. On February 2, 1990, an exclusive contract was
authorized by the hospital. Dutta was notified that she would no longer be
permitted to provide radiation therapy services at the hospital after May 1,
1990. By letter, Dutta twice requested a hearing on the hospital’s decision to
revoke her right to use hospital facilities. Both requests were denied.
Dutta sued the hospital for breach of employment contract after the hospital
entered into an exclusive agreement with Tan, thereby denying Dutta the
use of the hospital’s radiology department and equipment. Dutta presented
evidence about the purpose of the requirement in her contract with the
hospital that provided that the new medical director be mutually acceptable
to both parties. A hospital administrator testified that the hospital and Dutta
included the phrase “mutually acceptable” in the contract because “[w]e both
agreed that we wanted the person being recruited to be compatible with
Dutta” [Id. at 932].
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Issue
Was the language, “mutually acceptable,” ambiguous in the employment
contract between the hospital and Dutta?
Holding
The Kansas Court of Appeals held that substantial evidence supported the
jury’s verdict that the hospital breached its written employment contract with
Dutta by hiring a medical director who was not mutually acceptable to both
the hospital and Dutta.
Reason
The language in the contract is ambiguous if the words in the contract are
subject to two or more possible meanings. The determination of whether a
contract is ambiguous is a question of law. Paragraphs 4 and 5 of the
hospital’s employment agreement with Dutta, dated August 8, 1988, read as
follows:
4. During the term of this Agreement the Medical Center shall be actively
recruiting for a full-time Medical Director for the Radiation Therapy
department. . . . Dr. Dutta shall be involved in the interviewing process.
The person selected for [the] above positions shall be mutually
acceptable to the Medical Center and Dr. Dutta. Dr. Dutta may discuss
potential business arrangements with each individual interviewed.
5. Once the full-time Medical Director or part-time radiation therapist is
selected, Dr. Dutta will, in good faith, attempt to reach a satisfactory
business arrangement with the selected individual. [Id. at 936]
The testimony of Dutta, the hospital administrator, and the attorney who
represented Dutta in contract negotiations provides a factual basis for the
jury to find that the phrase, “mutually acceptable,” in the contract was
intended by Dutta to ensure that the hospital would select a medical director
who indicated a willingness to form a partnership or otherwise acceptable
business relationship.
In Watson v. Idaho Falls Consolidated Hospitals, Inc., a nurse’s aide was
awarded $20,000 for damages when the hospital, as employer, violated the
provisions of its employee handbook in the manner in which it terminated the
plaintiff’s employment. Although the nurse’s aide had no formal written
contract, the employee handbook and the hospital policies and procedures
manual constituted a contract in view of evidence to the effect that these
documents had been intended to be enforced and complied with by both
employees and management. Employees read and relied on the handbook as
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creating terms of an employment contract. They were required to sign for the
handbook to establish receipt of a revised handbook that explained hospital
policy, discipline, counseling, and termination. A policy and procedure manual
placed on each floor of the hospital also outlined termination procedures.
Employee Handbook: Not a Contract
An employee handbook is not always considered a contract, as noted in
Churchill v. Waters where it was not a contract because of a disclaimer in
the handbook. A nurse brought a civil rights action against the hospital and
hospital officials after her discharge. The federal district court held for the
defendants, finding that the hospital employee handbook did not give the
nurse a protected property interest in continued employment: “Absent proof
that the handbook contained clear promises which indicated the intent to bind
the parties, no contract was created.” The “handbook contained a
disclaimer” expressly disavowing any attempt to be bound by it and stated that
its contents were not to be considered conditions of employment. The
handbook was presented as a matter of information only, and the language
contained therein was not intended to constitute a contract between
McDonough District Hospital and the employee. Although an employee
handbook may delineate specific disciplinary procedures, that fact does not, in
and of itself, constitute an enforceable contract.
In Trieger v. Montefiore Med. Ctr. a memorandum was circulated by Trieger
to department chairs at the hospital strongly criticizing management and
urging his co-chairs “to set things right and reclaim their prerogatives and
responsibilities.” The memorandum read in part as follows:
. . . the role of Chairman has eroded over the past decade, largely through
autocratic, unilateral decision-making and administrative micro-
management. Chairmen no longer recruit faculty to their staff. Senior
administration writes a contract which details in legalistic terminology what
the boundaries will be, often without any provision for academic pursuits or
even a phrase of welcome and encouragement. The Administration insists
that all revenues belong to Montefiore including honoraria paid for
continuing medical education teaching. Monies received for Graduate
Medical Education from federal and state sources, which are meant to pay
for teaching support for house staff education are usually absent from
teaching budgets. The crisis of failure to replace essential capital
equipment has managed to impair our efficiency of operation and have us
drift further down the spiral of deficit. We seem to have entered onto the
stage of a non-reversible Greek tragedy. We have to deal with hiring
freezes which further compromise our productivity. To my knowledge
chairmen and attending staff have not received a cost of living increase in
salary in nine years! How can you retain good faculty?
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The appellate court found that the trial court correctly determined that the
memorandum was insubordinate and that it gave just cause for termination of
the physician’s employment contract. In addition, the physician’s age
discrimination claim was dismissed for lack of evidence sufficient to raise an
issue of fact as to whether the hospital’s reason for the doctor’s dismissal,
circulation of the insubordinate memorandum, was a pretext for discrimination.
The doctor was terminated immediately after circulating the insubordinate
memorandum, and there was no other evidence in the record to support the
claim that the hospital’s actions were false or contrived.
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▸ MEDICAL STAFF BYLAWS: A CONTRACT
Medical staff bylaws can be considered a contract. The plaintiff, Dr. Bass, in
Bass v. Ambrosius, alleged that the hospital’s termination of his staff
privileges violated its own bylaws. The hospital contended that its bylaws did
not constitute a contract between itself and Bass, and therefore, any violation
of those bylaws would not support a breach of contract claim. The general rule
that hospital bylaws can constitute a contract between the hospital and its staff
is consistent with Wisconsin law that an employee handbook written and
disseminated by the employer, and whose terms the employee has accepted,
constitutes a contract between the employer and the employee. For instance,
in Ferraro v. Koelsch, an employee handbook was management’s statement
of what the company offered its employees and what it expected from its
employees in return. It thus contained the essential elements of a binding
contract: the promise of employment on stated terms and conditions by the
employer and the promise by the employee to continue employment under
those conditions. The court noted that a promise for a promise, or the
exchange of promises, constitutes consideration to support any contract of this
bilateral nature.
The bylaws at issue in Bass v. Ambrosius, required by Wis. Admin. Code §
HSS 124.12(5) and approved by the hospital’s board of directors, have the
same contractual elements as did the handbook in Ferraro. First, the bylaws
state that they provide the rules that govern the physicians and dentists
practicing at the hospital. Second, members of the hospital’s medical–dental
staff must continuously meet the qualifications, standards, and requirements
set forth in the bylaws. Third, an appointment to the medical–dental staff
confers only those privileges provided by the letter of appointment and the
bylaws. Fourth, all applicants for appointment to the medical–dental staff must
submit a signed application acknowledging the requirement to familiarize
themselves with the bylaws. Thus, Bass’s application to the medical–dental
staff acknowledged by his signature that he would conduct his professional
activities according to the bylaws and rules and regulations of both the hospital
and the medical–dental staff of the hospital. In a separate letter, as part of the
application process, Bass agreed to conduct his activities according to the
bylaws of the hospital, as well as the bylaws and rules and regulations of the
hospital’s medical–dental staff. For its part, the hospital promised that the
medical–dental staff would be guided and governed by rules and regulations
consistent with the bylaws, and it promised that any adverse action against a
member of the medical–dental staff would comply with various procedural
safeguards. The bylaws constituted a contract between Bass and the hospital.
Accordingly, Bass was entitled to an order holding that the hospital had to
comply with its bylaws before it could terminate his staff privileges.
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In Sadler v. Dimensions Health Corporation, Sadler, an obstetrician and
gynecologist (OB/GYN), applied for medical staff privileges in the hospital’s
OB/GYN department. She was granted temporary privileges pending receipt of
further information on her application. While practicing at the hospital, three
incident reports concerning Sadler were filed. They involved her failure to
respond to calls and initiate timely treatment, a broken humerus and
permanent nerve injury following a birth, and a retained surgical sponge. The
patient care committee (PCC) of the OB/GYN department reviewed the reports
and concluded that continued observation of Sadler was warranted. The PCC
met with Sadler to review five cases. Three involved nonindicated or
precipitous cesarean sections, and two involved delayed responses to calls
from the hospital staff. Following review, the PCC recommended that Sadler
consult with more senior practitioners for second opinions before performing
cesarean sections.
Two physician consultants were eventually retained by the OB/GYN
department of the hospital to review charts of a variety of Sadler’s cases.
Random charts of other members of the OB/GYN department of the hospital
were also reviewed. Following review, the consultants recommended in their
report that Sadler be subjected to case-by-case pre-monitoring for surgical
indications. The hospital’s medical executive committee (MEC) reviewed the
documentation regarding Sadler’s performance. Based on that review, the
MEC voted not to extend provisional privileges and to impose monitoring of
Sadler until her provisional privileges expired. Sadler was notified by letter of
the MEC decision not to extend her provisional privileges. She was advised
that she had a right to request a hearing pursuant to the provisions of the
bylaws. Sadler exercised that right, and an ad hoc committee (a hearing
committee) was formed pursuant to the bylaws. The committee concluded that
there was compelling evidence that the physician consistently disregarded
hospital policies, was unprofessional in her dealings with staff, and deviated
from acceptable standards in her hospital record keeping and clinical practice.
In addition, she ignored efforts by the hospital to bring her into compliance.
The parties agreed that the bylaws of the medical staff of the hospital to which
Sadler subscribed when she applied for privileges at the hospital constituted
an enforceable contract between her and the hospital. Those bylaws provided
a process by which Sadler could challenge her termination of clinical
privileges. Sadler fully pursued the prescribed process.
Represented by counsel, she appeared before a panel of members of the
medical staff who had no involvement with her case. She cross-examined
witnesses under oath, called her own witnesses, offered evidence, and
presented oral argument and posthearing written memoranda to the hearing
committee. When the hearing committee agreed with the recommendation of
the MEC that her privileges at the hospital should be terminated, she
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exercised her right under the bylaws to have that decision reviewed by the
appellate review committee of the board of directors.
The court of appeals held that there was substantial evidence to support the
conclusions of the hearing committee and the board of directors that the
imposition of proctoring and monitoring upon Sadler and the termination of her
hospital privileges were reasonable and proper.
Right to Hearing
A physician whose privileges are either suspended or terminated must
exhaust all remedies provided in a facility’s bylaws, rules, and regulations
before commencing a court action. The U.S. Court of Appeals in Northeast
Georgia Radiological Associates v. Tidwell held that a contract with the
hospital’s radiologists, which incorporated the medical staff bylaws, sustained
the plaintiffs’ claim to a protected property interest entitling them to a hearing
before the medical staff and the hospital authority.
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▸ EXCLUSIVE CONTRACTS
An organization often enters into an exclusive contract with physicians or
medical groups for the purpose of providing a specific service(s) to the
organization. Such contracts generally grant the contracting party the
exclusive right to perform the services contracted for by the organization.
Exclusive contracts typically occur within the organization’s ancillary service
departments (e.g., anesthesiology, emergency services, pathology, radiology).
Physicians who seek to practice at organizations in these ancillary areas but
who are not part of the exclusive group have attempted to invoke the federal
antitrust laws to challenge these exclusive contracts. These challenges
generally have been unsuccessful.
In Jefferson Parish Hospital v. Hyde, the defendant hospital had a contract
with a firm of anesthesiologists that required all anesthesia services for the
hospital’s patients be performed by that firm. Because of this contract, the
plaintiff anesthesiologist’s application for admission to the hospital’s medical
staff was denied. Dr. Hyde commenced an action in the federal district court,
claiming the exclusive contract violated Section 1 of the Sherman Antitrust Act.
The district court rejected the plaintiff’s complaint, but the U.S. Court of
Appeals for the Fifth Circuit reversed the decision, finding the contract illegal
per se. The Supreme Court reversed the Fifth Circuit, holding that the
exclusive contract in question does not violate Section 1 of the Sherman
Antitrust Act. The Supreme Court’s holding was based on the fact that the
defendant hospital did not possess “market power,” and, therefore, patients
were free to enter a competing hospital and to use another anesthesiologist
instead of the firm. Thus, the court concluded that the evidence was
insufficient to provide a basis for finding that the contract, as it actually
operates in the market, had unreasonably restrained competition.
Similarly, the anesthesiologists in Belmar v. Cipolla brought an action
challenging a hospital’s exclusive contract with a different group of
anesthesiologists. The New Jersey Supreme Court held that under state law,
the hospital’s exclusive contract was reasonable and did not violate public
policy.
Although the experts at trial differed about the relative advantages and
disadvantages of the exclusive contract between Community and
defendant doctors, all agreed that an exclusive contract was a recognized
method of providing anesthesiology services. At trial, plaintiffs relied on an
amendment to the statement of policy of the American Society of
Anesthesiologists that disapproves exclusive contracts between hospitals
and anesthesiologists. The statement, apparently adopted in response to
the use of nurse anesthetists by some hospitals, is advisory only and does
not subject contracting anesthesiologists to ethical sanctions.
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COMPETITION CLAUSE NOT OVERLY RESTRICTIVE
Citation: Dominy v. National Emergency Servs., 451 S.E.2d 472 (Ga. App.
1994)
Facts
The appellee, National Emergency Services (NES), assigned appellant, Dr.
Dominy, to the emergency department at Memorial Hospital and Manor
(MHM) in Bainbridge, Georgia, where he was working in 1987 when that
hospital terminated its contract with NES and contracted with another
provider, Coastal Emergency Services, for emergency department
physicians. Dominy continued to perform emergency medical services at
MHM under contract with Coastal until 1989.
The contract provided: “The period of this Agreement shall be for one (1)
year from the date hereof, automatically renewable for a like period upon
each expiration thereof. . . .” The only reasonable construction of this
provision was that the parties intended to contract for Dominy’s employment
for automatically renewable 1-year terms upon the mutual assent of the
parties. The fact that the agreement did not set out the mechanics by which
mutual assent may be communicated did not invalidate the contract.
Dominy challenged the contract’s noncompetition clause as overly
restrictive. The covenant in this case provides, in pertinent part: “for a period
of two (2) years after the termination of this agreement . . . Physician shall
not directly or indirectly solicit a contract to perform nor have any ownership
or financial interest in any corporation, partnership, or other entity soliciting
or contracting to perform emergency medical service for any medical
institution at which Physician has performed the same or similar services
under this Agreement or any prior Agreement between Physician and
Corporation” [Id. at 474].
Issue
Was the contract’s noncompetition clause overly restrictive?
Holding
The court of appeals held that the noncompetition clause was not overly
restrictive.
Reason
The record reveals no attempt by either party to terminate the contract, and
it is undisputed that Dominy received payment for his services at MHM and
other benefits from NES consistent with the agreement until the hospital
terminated its contract with NES. By their conduct, the parties assented to
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each of the contract’s yearly renewals. Accordingly, the trial court properly
granted summary judgment to NES.
As to the contract’s noncompetition clause, this restriction prohibits Dominy
from performing emergency medical services in only MHM in Bainbridge,
Georgia, where he worked pursuant to a contract with NES, and from having
an ownership or financial interest in an entity contracting to provide
emergency medical services to that one hospital. He is not precluded from
all practice of medicine, with staff privileges at MHM, nor is he prohibited
from providing emergency medical services, directly or under contract to a
provider of such services, to other hospitals in the immediate vicinity. The
court found that such a restriction is reasonably limited in duration and
territorial effect while it protects NES’s interest in preventing Dominy from
becoming its competitor immediately after termination of its contract with
MHM.
Nurse Practitioner: Noncompetitive Clause
The respondent-hospital in Washington County Memorial Hospital v.
Sidebottom employed the appellant-nurse practitioner from October 1993
through April 1998. Prior to beginning her employment, the nurse entered into
an employment agreement with the hospital. The agreement included a
noncompetition clause providing, in part, that the nurse, during the term of the
agreement and for a period of 1 year after the termination of her employment,
would not within a 50-mile radius directly or indirectly engage in the practice of
nursing without the express direction or consent of the hospital. In February
1994, the nurse requested the hospital’s permission to work for the
Washington County Health Department doing prenatal nursing care. Because
the hospital was not then involved in providing prenatal care, the hospital gave
her permission to accept that employment but reserved the ability to withdraw
the permission if the services the nurse was providing later came to be
provided by the hospital. In January 1996, the nurse and the hospital entered
into a second employment agreement that continued the parties’ employment
relationship through January 9, 1998. This agreement included a
noncompetition clause identical to the 1993 employment agreement. It also
provided for automatic renewal for an additional 2 years unless either party
gave written termination notice no less than 90 days prior to the expiration of
the agreement. On March 11, 1998, the nurse gave the hospital written notice
of her resignation effective April 15. On April 16, the nurse began working as a
nurse practitioner with Dr. Mullen, whose office is located within 50 miles of
the hospital.
The Circuit Court prohibited the nurse from practicing nursing within a 50-mile
radius of the hospital for a period of 1 year from April 15. The noncompetition
clause in the nurse’s employment agreement was found to be clear and
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unambiguous. The nurse had been notified by the hospital that the
noncompetition clause in her contract would be enforced. On appeal, the
judgment of the circuit court was affirmed.
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▸ RESTRAINT OF TRADE
The increasing number of alternative delivery systems and resultant
competition has created the potential for illegal activities to restrain trade. The
emphasis on free enterprise and a competitive marketplace has resulted in
careful scrutiny by the Federal Trade Commission (FTC), the federal agency
responsible for monitoring the marketplace and enforcing federal antitrust
laws.
The Antitrust Division of the U.S. Department of Justice has primary
responsibility for enforcing federal antitrust laws, which includes investigation
of possible violations of both the criminal and the civil provisions of the
Sherman, Clayton, and Robinson–Patman Acts.
Federal Trade Commission
The FTC is authorized to enforce Section 5 of the FTC Act, which prohibits
unfair methods of competition and unfair or deceptive acts or practices.
Together with the Department of Justice, the FTC also enforces the Clayton
Act sections that prohibit discrimination (e.g., in price), exclusive dealings and
similar arrangements, certain corporate acquisitions of stock or assets, and
interlocking directorates.
Sherman Antitrust Act
The Sherman Antitrust Act, named for its author Senator John Sherman of
Ohio, proscribes that every contract, combination in the form of trust or
otherwise, or conspiracy in restraint of trade or commerce among the several
states is declared to be illegal. Those who attempt to monopolize or combine
or conspire with any other person or persons to monopolize any part of the
trade or commerce can be deemed guilty of a felony. Areas of concern for
healthcare organizations include reduced market competition, price fixing,
actions that bar or limit new entrants to the field, preferred provider
arrangements, and exclusive contracts.
A healthcare organization must be cognizant of the potential problems that
may exist when limiting the number of physicians that it will admit to its
medical staff. Because closed staff determinations can effectively limit
competition from other physicians, the governing body must ensure that the
decision-making process in granting privileges is based on legislative,
objective criteria and is not dominated by those who have the most to gain
competitively by denying privileges. Physicians have attempted to use state
and federal antitrust laws to challenge determinations denying or limiting
medical staff privileges. Generally, these actions claim that the organization
conspired with other physicians to ensure that the complaining physician
would not obtain privileges so that competition among physicians would be
reduced.
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Conspiracy to Terminate Physician’s Privileges
In Patrick v. Burget, the U.S. Supreme Court upheld a $2 million jury verdict
in favor of a surgeon practicing in Oregon who claimed that other physicians
conspired to terminate his staff privileges at the only hospital in town and thus
drove him out of practice. The defendant physicians argued that their conduct
should be immune from liability under the state action doctrine because
Oregon, like many states, has state agencies that regulate the procedures that
hospitals may use to grant or deny staff privileges. The Supreme Court
rejected this state action defense in the light of the egregious facts of the case
(the defendant physicians were also participants in the state processes) and
the fact that Oregon’s statutory scheme did not actively supervise medical staff
determinations.
Claim of Boycott Denied
On February 29, 1984, the defendant hospital in Cogan v. Harford Memorial
Hospital, owned by Upper Chesapeake Health Systems, Inc. (UCHS),
contracted with Dr. Cogan to act as the chief of radiology for 5 years. In 1988,
the hospital and Cogan renegotiated the contract. Cogan’s compensation was
increased, and the contract was extended until May 25, 1993, subject to
termination by either party, providing a 120-day written notice. During the
renegotiation, Cogan sought compensation on a fee-for-service basis, but the
hospital was uncomfortable with such an arrangement.
In December 1990, Cogan began discussing with NMR of America, Inc. the
possibility of opening a radiology clinic to provide testing with magnetic
resonance imaging (MRI) separate from the hospital. The hospital expressed
opposition to such an arrangement. In response, Cogan tied discussions of a
new MRI clinic to renegotiation of his contract on a fee-for-service
arrangement. The hospital agreed to discuss a fee-for-service contract. Under
the proposed contract, Cogan’s radiology group would not maintain any
financial or professional interest with any competing medical facility within 20
miles of a hospital owned by UCHS. The parties failed to reach an agreement.
On March 1, 1991, the hospital informed Cogan of its intention to terminate his
employment contract as of June 28, 1991. In October 1991, Cogan formed
Cogan & Smith, a partnership with Dr. Smith, his former associate at the
hospital.
In November 1991, Cogan & Smith signed a contract in which it agreed to act
as the managing director of a radiology clinic. The clinic had a lower volume of
business than anticipated, and Cogan filed suit against UCHS. He contended
that the hospital’s policy against sending patients to facilities not accredited by
The Joint Commission impeded the clinic’s business. The hospital claimed that
the policy affected no more than seven patients. Cogan contended it affected
15,000 patients. He characterized this policy as a group boycott against the
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clinic. Under the Sherman Antitrust Act, group boycotts may be considered
anticompetitive.
Cogan contended that the defendants violated the Sherman Act, breached the
contract between himself and UCHS, interfered with his contractual relations,
wrongfully discharged him, and deprived him of his constitutional rights in
violation of 42 U.S.C. § 1983, as amended, 15 U.S.C.A. §§ 1, 2.
The U.S. District Court held that the harm suffered by Cogan because he was
unable to continue working at the hospital was not compensable under the
Sherman Act. The court found no evidence showing that competition in any
relevant market had been harmed, reduced, or impacted by the termination of
Cogan’s contract or the alleged group boycott of the MRI clinic by the
implementation of the hospital’s policy. The only harm asserted was Cogan’s
inability to continue working at the hospital. The injury he incurred as a
competitor of the hospital was not the “type the antitrust laws were intended to
prevent.”
Agreement for Professional Services Too Restrictive
In Emergicare Systems Corporation v. Bourdon, Emergicare Systems
Corporation (ESC) contracted to provide emergency department physicians to
the Longview Regional Hospital for several years; Dr. Bourdon was one of
those physicians. On October 23, 1991, ESC sent a letter to Bourdon
confirming that its contract with Longview Regional Hospital would terminate
on November 8, 1991, and that pursuant to his agreement for professional
services with ESC, his agreement with ESC would also terminate. Bourdon
talked to the hospital administrator and to Metroplex Emergency Physicians,
PA. Arrangements were made for him to continue his work at the emergency
department as an employee of Metroplex.
ESC sued Bourdon and Metroplex. ESC alleged that Bourdon breached a
covenant not to compete and that Metroplex interfered with its contractual
agreement with Bourdon. Following a nonjury trial, judgment was rendered on
February 15, 1996, that ESC take nothing from the defendants. ESC
appealed. The covenant purports to restrict the physician from working within
5 miles of any clinic operated by ESC, whether the physician ever worked in
that clinic or not. Also, the covenant purports to restrict the physician from
working in any emergency department where ESC provides emergency
department physicians for 1 year following termination of such contract. This
could be at some indefinite future date, more than 1 year following the
physician’s termination of employment by ESC.
The trial court was correct in rendering the take-nothing judgment on the
appellant’s claims against Metroplex. The appeals court held that covenants
not to compete that are unreasonable restraints of trade and that are
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unenforceable on grounds of public policy cannot form the basis of an action
for tortious interference.
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▸ HOSPITAL STAFF PRIVILEGES
Staff privileges are both professionally and economically important to
healthcare professionals in the practice of their chosen professions.
Healthcare organizations must be selective in the granting of staff privileges to
maintain quality standards, but every effort must be made to prevent
anticompetitive abuses. As competition increases between podiatrists and
orthopedic surgeons, psychologists and psychiatrists, nurse midwives and
obstetricians, nurse anesthetists and anesthesiologists, and so on, it must be
understood that there is a clear difference in denying staff privileges to an
individual on a quality basis and denying such privileges to an entire group of
professionals; the latter will serve only to raise a red flag and increase the
chances of scrutiny by the courts. Competition for patients increases the
potential for denial of privileges to prevent competitors from effectively
entering the marketplace and practicing their respective professions.
CONTRACT VIOLATES ANTITRUST LAWS
Citation: Oltz v. St. Peter’s Community Hosp., 19 F.3d 1312 (9th Cir. 1994)
Facts
Oltz, a nurse anesthetist, brought an antitrust action against physician
anesthesiologists and St. Peter’s Community Hospital after he was
terminated. Oltz had a billing agreement with the hospital, which provided
84% of the surgical services in the rural community that it served. The
anesthesiologists did not like competing with the nurse anesthetist’s lower
fees and, as a result, entered into an exclusive contract with the hospital on
April 29, 1980, in order to squeeze the nurse anesthetist out of the market.
This resulted in cancellation of the nurse anesthetist’s contract with the
hospital. Oltz filed a suit against the anesthesiologists and hospital for
violation of the Sherman Antitrust Act, 15 U.S.C. § 1. The anesthesiologists
settled for $462,500 before trial.
The case against the hospital proceeded to trial. The jury found that the
hospital conspired with the anesthesiologists and awarded the plaintiff
$212,182 in lost income and $209,649 in future damages. The trial judge
considered the damage award to be excessive and ordered a new trial.
The hospital motioned the court to exclude all damages after June 26, 1982,
which was the date that the hospital renegotiated its exclusive contract with
the anesthesiology group. The court decided that Oltz failed to prove that
the renegotiated contract also violated antitrust laws, thus ruling that Oltz
was not entitled to damages after June 26, 1982. Because Oltz conceded
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that he could not prove damages greater than those offset by his settlement
with the physicians, his claim for damages against the hospital was
disposed of by summary judgment.
The judge who presided over Oltz’s request for attorneys’ fees restricted the
amount that he could claim. Because Oltz had been denied damages from
the hospital, the judge refused to award attorneys’ fees or costs for work
performed after the 1986 liability trial.
Issue
Was Oltz entitled to seek recovery for all damages resulting from destruction
of his business after June 26, 1982?
Holding
The U.S. Court of Appeals for the Ninth Circuit held that Oltz was entitled to
seek recovery for all damages.
Reason
Oltz introduced evidence that the initial exclusive contract violated antitrust
laws and that such violation destroyed his practice. “Because the initial
conspiracy destroyed his practice, Oltz is entitled to seek recovery for all
damages resulting from the destruction of his business. . . . The legality of
any subsequent agreements between the conspirators is irrelevant, because
the April 29, 1980, contract severed the lifeline to Oltz’s thriving practice . . .”
[Id. at 1314].
Restricting Medical Staff Privileges
Moratoriums and closed medical staffs, as used in the healthcare field,
describe an organization’s policy of prohibiting further appointments to its
medical staff. Generally, a moratorium is for a specified period. It is lifted at
such time as the purpose for which it was instituted no longer exists. A closed
staff is of a more permanent nature and relates to the mission of the institution,
such as a commitment to teaching and research. Such institutions are very
selective in their medical staff appointments. Generally, physicians who are
appointed have both prominent academic interests and abilities as well as
national recognition for expertise in their specialties.
Organizations have adopted a moratorium policy in certain instances because
of a high inpatient census and the difficulties that would be encountered in
accommodating new physicians. If left unchecked, the closing of an
organization’s medical staff eventually could have the effect of discouraging a
competitive environment in the physician marketplace and delivery of health
care. The governing body should methodically and rationally review any
request to close any department or specialty to new applicants for medical
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staff privileges. When considering exclusive contracts the organization also
must consider its financial effect on both the physician as well as the
organization. Closing the staff to competent community-based physicians does
not necessarily equate to quality patient care. Governing bodies that adopt a
policy limiting the number of physicians by specialty or department must do so
on a rational basis and take the following into consideration before closing or
limiting medical staff privileges to new applicants:
Effect on the organization’s census
Organization and community needs for additional physicians in medical
and surgical specialties and subspecialties that have a few or
dwindling number physicians on staff, which in turn, limits patient
choice in selecting a physician
Strain that additional staff will place on the organization’s supporting
departments (e.g., radiology and laboratory services)
Effect of denying medical staff privileges to applicants who presently
are located within the geographic area of the organization and serving
community residents
Effect on any contracts the organization may have with other
healthcare delivery systems, such as health maintenance
organizations
Effect a moratorium will have on physician groups that may desire to
add a partner
The positive effect additional staff may have on the quality of care
rendered in the organization
Whether closing the staff will confine control of the organization’s beds
to the existing medical staff, allowing them to enhance their economic
interests at the expense of their patients and other qualified physicians
Effect of a limited moratorium by specialty as opposed to a
comprehensive one involving all specialties (indiscriminately closing a
staff in all departments and sections without a review could be
considered an action in restraint of trade)
Existence of a mechanism for periodic review of the need to continue a
moratorium
Effect that medical staff resignations during the moratorium may have
on the organization’s census
Adopting a mechanism to encourage and recruit new physicians when
a need is determined necessary to meet community needs
Characteristics of the medical staff (is the staff aging and is there a
need for highly trained physicians trained in new technology?)
Potential for restraint of trade legal action under antitrust laws
Effect on physicians without staff privileges whose patients are
admitted to the hospital
Formation of a committee composed of representatives from the
governing body, medical staff, administration, and legal counsel to
develop an appropriate moratorium policy
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Selection of a consultant to study the demographic marketplace,
physician referral patterns, literature, and organization use; conduct a
medical staff opinion poll; develop patient–physician population ratios;
determine population shifts; develop a formula to determine optimal
staffing levels by department and section; and provide this information
to the governing body for use in determining the appropriateness of
closing the staff in selected medical departments and/or sections
Consideration of the support of the governing body, medical staff, and
administration prior to taking any action that limits the acceptance of
new physicians to the organization’s professional staff
Addressing of community concerns in order to assure diversity and the
right and the ability of patients to choose a physician from the
community with which they have a trust relationship, a right that must
not be hindered by healthcare facilities that decide to limit applications
from qualified medical staff applicants
The continuing pressures of new technology, third-party payers, a growing
body of regulations, malpractice insurance rates, and a shortage of physicians
in a variety of specialties emphasize the need for organizations to consider
how they can effectively compete in the marketplace. The imposition of a
moratorium could prove to be counterproductive to the long-term survival of an
organization.
The governing body must ensure that any proposed action to close an
organization’s medical staff is based on objective criteria. Unless an
organization can show closing its medical staff is based on legitimate patient
care concerns and/or relates to the objectives of the organization, physicians
could successfully challenge an organization’s actions to impose a
moratorium.
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▸ TRANSFER AGREEMENTS
Healthcare organizations should have a written transfer agreement in effect
with other organizations to help ensure the smooth transfer of patients from
one facility to another when such is determined appropriate. A transfer
agreement is a written document that sets forth the terms and conditions
under which a patient may be transferred from one facility to another that is
able to provide the kind of care required by the patient. Transfer agreements
help to seamlessly facilitate moving patients between facilities when medically
necessary.
Transfer agreements should be written in compliance with and reflect the
provisions of the federal and state laws, regulations, and standards affecting
healthcare organizations. Agreements that will aid in bringing about the
maximum use of the services of each organization and in ensuring the best
possible care for patients should be established. The basic elements of a
transfer agreement include the following:
1. Identification of each party to the agreement, including the name and
location of each organization to the agreement.
2. Purpose of the agreement.
3. Policies and procedures for transfer of patients. (Language in this
section of the agreement should make it clear that the patient’s
physician makes the determination as to the patient’s need for the
facilities and services of the receiving organization. The receiving
organization should agree that, subject to its admission requirements
and availability of space, it will admit the patient from the transferring
organization as promptly as possible.)
4. Organizational responsibilities for arranging and making the transfer.
(Generally, the transferring organization is responsible for making
transfer arrangements. The agreement should specify who would bear
the costs involved in the transfer.)
5. Exchange of information. (The agreement must provide a mechanism
for the interchange of medical and other information relevant to the
patient.)
6. Retention of autonomy. (The agreement should make clear that each
organization retains its autonomy and that the governing bodies of
each facility will continue to exercise exclusive legal responsibility and
control over the management, assets, and affairs of their respective
facilities. It also should be stipulated that neither organization assumes
any liability by virtue of the agreement for any debts or obligations of a
financial or legal nature incurred by the other.)
7. Procedure for settling disputes. (The agreement should include a
method of settling disputes that might arise over some aspect of the
patient transfer relationship.)
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8. Procedure for modification or termination of the agreement. (The
agreement should provide that it could be modified or amended by
mutual consent of the parties. It also should provide for termination by
either organization on notice within a specified period.)
9. Sharing of services. (Depending on the situation, cooperative use of
facilities and services on an outpatient basis [e.g., laboratory and X-ray
testing] may be an important element of the relationship between
organizations. The method of payment for services rendered should be
carefully described in the agreement.)
10. Publicity. (The agreement should provide that neither organization will
use the name of the other in any promotional or advertising material
without prior approval of the other.)
11. Exclusive versus nonexclusive agreement. (It is advisable for
organizations—when and where possible—to have transfer
agreements with more than one organization. The agreement may
include language to the effect that either party has the right to enter
into transfer agreements with other organizations.)
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▸ INSURANCE CONTRACT
Insurance is a form of risk management used primarily to hedge against the
risk of potential loss. In an insurance contract, the insurer has an obligation to
indemnify the insured for losses caused by specified events. In return, the
insured must pay a fixed premium during the policy period. As noted, the
interpretation of an insurance contract can give rise to a legal action when the
insurer refuses to indemnify the insured.
Coverage Denied
The plaintiffs in Truett v. Community Mut. Ins. Co. brought an action against
the insurer to recover medical expenses. In June 1991, Truett was treated for
migraine headaches. As of August 1, 1991, Truett was covered under an
employee benefit plan through a group health insurance contract with
Community Mutual Insurance Co. On August 29, 1991, Truett was hospitalized
for dizziness, vomiting, and weakness on his left side. After extensive testing,
Dr. Moorthy diagnosed Truett as suffering from a complicated migraine. Truett
sought reimbursement for medical expenses he incurred during the course of
his illness.
Community Mutual concluded on January 20, 1992, that Truett’s medical
expenses were not covered because the expenses were for the care of a
preexisting condition. Under the insurance policy, conditions that existed prior
to the effective date of the policy were not covered if health problems related
to the conditions were manifested after the effective date. Truett challenged
this assessment to a Community Mutual appeals board. Dr. Morrow was
recruited by Community Mutual to provide an expert assessment of Truett’s
case. The Community Mutual appeals board found that Truett’s condition was
preexisting because he had been treated in June 1991 for migraine
headaches. Therefore, Community Mutual denied his coverage for his
expenses. On September 1, 1992, Truett filed a complaint against Community
Mutual to recover Truett’s medical expenses. The court of common pleas
entered summary judgment for Community Mutual, and Truett appealed.
THE COURT’S DECISION
The Supreme Court of South Carolina found that the trial court erred in
granting a directed verdict to Strickland on Harvey’s breach of contract
claim. Harvey relied on the documents he signed expressing his desire not
to be administered blood.
I, Charles Harvey, refuse to have blood or any blood products given to
me.
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The risks attendant to my refusal have been fully explained to me and I
fully understand that my chances for gaining normal health are seriously
reduced, and that in all probability, my refusal for such treatment,
medical intervention, and/or procedure (may) (will) seriously imperil my
health or life.
With the understanding, I hereby release the attending physician, the
Lexington Medical Center and its employees and their respective agents,
heirs, executors, administrators and assigns from any and all claims of
whatsoever kind of any nature.
“Dr. Strickland testified that although he knew Harvey was a Jehovah’s
Witness, Harvey had told him he would consider a blood transfusion.” The
court determined that it was for the jury to determine whether an
undocumented express contract was created after the written consent form
was signed refusing blood and blood by-products. The trial court’s grant of a
directed verdict was reversed, and the matter was remanded for a new trial.
The Ohio Court of Appeals held that the insurer’s denial of coverage was not
arbitrary or capricious. The appeals board had all of Truett’s medical records
from before and after the incident in question. It obtained Morrow’s expert
opinion that the complicated migraine was a continuation from Truett’s
previous bouts with normal migraines. The appeals board and Morrow relied
on medical evidence in making their decisions and neither overlooked nor
ignored relevant information. Thus, the decision was not arbitrary or
capricious.
Today, national health insurance provides that “All Marketplace plans must
cover treatment for pre-existing medical conditions. No insurance plan can
reject you, charge you more, or refuse to pay for essential health benefits for
any condition you had before your coverage started. Once you’re enrolled, the
plan can’t deny you coverage or raise your rates based only on your health.”
41
42
40
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▸ CHAPTER REVIEW
1. A contract is a written or oral agreement that involves legally binding
obligations between two or more parties. The purpose of a contract is
to provide legal recourse should one or more of the parties not perform
its obligations as set forth under the contract.
2. Various types of contracts include:
Express contracts: Those in which the parties have an oral
agreement or have reduced agreements to writing. Written
contracts are always the most desirable form. Although oral
contracts are generally recognized, the courts cannot always
enforce them.
Implied contracts: Those that are inferred by law and are based
on parties’ conduct.
Voidable contracts allow one party, but not the other, to escape
from legal obligations under the contract.
Executed contracts are those in which obligations have been
performed fully.
An enforceable contract is one that is a valid, legally binding
agreement. If one party breaches it, the other will have an
appropriate legal remedy.
An unenforceable contract is one in which, because of some
defect, no legal remedy is available if breached by one of the
parties to the contract.
Contracts for realty (real estate or interests in real estate),
goods (movable objects, with the exception of money and
securities), and services (human energy).
3. To be enforceable, contracts must contain:
An offer or communication
Consideration
Acceptance (If one or more of the parties who have entered
into the contract are not considered competent, the contract will
not be enforceable. Examples of those often found incompetent
include minors, people with mental illness, and prisoners.)
4. In a contract lawsuit, the following elements must be established:
A valid executed contract
Plaintiff performed as specified in the contract
Defendant failed to perform as specified in the contract
Plaintiff suffered an economic loss as a result of the
defendant’s breach of contract
5. Independent contractors agree to perform work without being under
the direct control or direction of another party.
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An employer is liable for the torts or negligence of an
independent contractor in certain circumstances; these include
negligence of the employer in selecting, instructing, or
supervising the contractor.
6. Defenses for not performing under a contract include:
Fraud
Mistake of fact or law
Duress
Impossibility to perform the contract
Expiration of the statute of limitations
7. Legal redress for breach of contract includes:
Specified performance of the duties set forth in the contract
Monetary (or compensatory) damages
General or consequential damages. General damages could
be expected to result from the breach of the contract, whereas
consequential damages are a result of unforeseen damages.
8. The right of an employer to terminate an employee can be limited
through:
Employment contract
Collective bargaining agreement
9. Employee handbooks and medical staff bylaws can be binding
contracts between employer and employee, unless such documents
provide legally acceptable disclaimers.
10. Exclusive contracts allow organizations to contract with physicians and
medical groups to provide specific services to the organization.
11. The Federal Trade Commission is a federal agency that monitors the
marketplace and enforces federal antitrust laws with the goal of
maintaining free enterprise in a competitive marketplace.
12. Transfer agreement is a written document that sets forth terms and
conditions under which a patient may be transferred to an alternate
facility for care.
13. Insurance contract
Insurer has an obligation to indemnify the insured for losses
caused by specified events.
In return, the insured must pay a fixed premium during the
policy period.
Interpretation of an insurance contract can give rise to a legal
action when the insurer refuses to indemnify the insured.
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343

▸ REVIEW QUESTIONS
1. Explain the importance of a “written” contract.
2. Explain the elements of a contract.
3. Describe the differences between an express and an implied contract.
4. Describe various defenses and remedies available for nonperformance
of a contract.
5. Explain why and under what circumstances an employee handbook
can be considered a contract.
6. Explain why employers should place disclaimers in employee
handbooks.
344

▸ NOTES
1. Harvey v. Strickland, 350 S.C. 303, 566 S.E.2d 529 (2002).
2. 225 A.2d 495 (Conn. 1966).
3. http://www.nghs.com/what-is-ahospitalist.
4. Number of Hospital Employed Physicians by 50% Since 2012, HealthLeaders
Media News, September 8, 2016.
http://www.healthleadersmedia.com/physician-leaders/number-hospital-
employed-physicians-50-2012?page=0%2C2#.
5. Henry Campbell Black, Black’s Law Dictionary, 4th ed., (Eagan, MN: West
Publishing, 1968), 1277.
6. National Conference of Commissioners on Uniform State Laws, “Uniform
Partnership Act (1997),” July 1996.
http://www.uniformlaws.org/shared/docs/partnership/upa_final_97 .
7. 25 P.3d 358 (2001).
8. 384 N.Y.S.2d 527 (N.Y. App. Div. 1976).
9. 693 N.Y.S.2d 143 (N.Y. App. Div. 1999).
10. No. E2004–00207-COA-R3-CV (Tenn. App. 2005).
11. P.C., 782 N.Y.S.2d 115 (N.Y. App. Div. 2004).
12. 492 N.Y.S.2d 9 (N.Y. 1985).
13. 605 N.E.2d 613 (Ill. App. Ct. 1992).
14. No. A75 September Term 2003 (N.J. 2005).
15. Community Hospital Group, Inc. v. Jay More, M.D., et al. (A-75/76-03).
16. 869 A.2d 901 (N.J. 2005).
17. 867 A.2d 1187 (N.J. App. 2005).
18. 457 N.Y.S.2d 193 (N.Y. 1982).
19. 720 P.2d 632 (Idaho 1986).
20. 731 F. Supp. 311 (D. Ill. 1990).
21. Id. at 321–322.
22. 570 N.E.2d 545 (Ill. App. Ct. 1991).
23. 789 N.Y.S.2d 42 (N.Y. App. Div. 2005).
24. Horty Springer, Trieger v. Montefiore Med. Ctr. March 9, 2004.
https://www.hortyspringer.com/documents/trieger-v-montefiore-med-ctr/.
25. 520 N.W.2d 625 (Wis. App. 1994).
26. 368 N.W.2d 666, 668, 674 (1985).
27. 141 Md. App. 715 (2001).
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http://www.nghs.com/what-is-ahospitalist

http://www.healthleadersmedia.com/physician-leaders/number-hospital-employed-physicians-50-2012?page=0%2C2

http://www.uniformlaws.org/shared/docs/partnership/upa_final_97

Trieger v. Montefiore Med. Ctr.

28. 670 F.2d 507 (5th Cir. 1982).
29. 466 U.S. 2 (1984).
30. 475 A.2d 533 (N.J. 1984).
31. Id.
32. 7 S.W.3d 542 (Mo. App. 1999).
33. 15 U.S.C. § 1 (1982).
34. 108 S. CT. 1658 (1988).
35. 42 U.S.C.A. §§ 11101–11152 (1986).
36. 843 F. Supp. 1013 (D. Md. 1994).
37. Id. at 1018.
38. 942 S.W.2d 201 (Tex. App. 1997).
39. 633 N.E.2d 617 (Ohio Ct. App. 1993).
40. HealthCare.gov. “Coverage for pre-existing conditions,”
https://www.healthcare.gov/coverage/pre-existing-conditions/.
41. Harvey v. Strickland, 566 S.E.2d 529, 311 (2002).
42. Id. at 307.
346

https://www.healthcare.gov/coverage/pre-existing-conditions/

© corgarashu/Shutterstock
347

CHAPTER 8
Civil Procedure and Trial Practice
IT’S YOUR GAVEL…
CONFLICTING EVIDENCE
Gwendolyn was in Mississippi when she felt light-headed and as though her
heart was racing. Gwendolyn’s sister brought her to the BCH hospital. Dr.
Dorrough diagnosed Gwendolyn as suffering from supraventricular
tachycardia. As Gwendolyn was discharged, she was told to follow up with
her physician and to return to the emergency room if she experienced any
further problems. Gwendolyn returned to Georgia and was admitted to a
medical center. She complained of dizziness, shortness of breath, and chest
tightness and stayed at the medical center for over 5 hours. She was later
transferred to St. Francis Hospital with a suspected diagnosis of acute
pulmonary embolus. At St. Francis, Gwendolyn underwent emergency
surgery. The surgery was unsuccessful, and Gwendolyn died of a
pulmonary embolus.
The plaintiffs filed a complaint against Dorrough and BCH hospital. The
complaint alleged that Dorrough and BCH breached their duty to provide
proper care to Gwendolyn. The plaintiffs had two expert witnesses, Dr.
Vance and Dr. Falk. Dorrough had one expert witness, Dr. Dupuis. The jury
heard conflicting testimony from the expert witnesses concerning the events
leading up to Gwendolyn’s death.
Vance testified that Dorrough did not meet the minimum standard of care
based on the fact that there was a sustained rapid heart rate and abnormal
laboratory findings. He stated that Gwendolyn suffered from sinus
tachycardia and not supraventricular tachycardia. He defined sinus
tachycardia as an increase in pulse rate in response to an underlying
disease state. Falk stated that, in his opinion, if Gwendolyn had been
properly diagnosed and given the drug heparin, she would not have
embolized and would have survived.
Dupuis, the defendant’s expert, testified that Dorrough did not fall below the
standard of care. He testified that Gwendolyn had a rare condition in that the
clot that ultimately killed her was in the heart and did not come from the
legs. Dupuis stated that Gwendolyn’s death was unavoidable despite the
best of care.
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The jury returned a verdict in favor of the plaintiffs and assessed damages in
the amount of $1.5 million against Dorrough. He appealed, asserting that the
verdict of the jury was not supported by credible or sufficient evidence.
WHAT IS YOUR VERDICT?
Trials, especially jury trials, are vital to fostering the respect of the
public in the civil justice system. Trials do not represent a failure of the
system. They are the cornerstone of the civil justice system. Unfortunately,
because of expense and delay, both civil bench trials and civil jury trials are
disappearing.
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2
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▸ LEARNING OBJECTIVES
The reader, upon completion of this chapter, will be able to:
Discuss the pretrial discovery process.
Describe the trial process.
Describe the forms of evidence presented by the plaintiff.
Describe defenses offered by the defendant.
Explain the purpose of the judge’s charge to the jury.
Describe the types of damages and how they are awarded.
For many students and healthcare practitioners, this book will be their only
formal introduction to the legal aspects of health care. This chapter, in
particular, is valuable to readers in understanding the law and its application in
the courtroom. Although many of the procedures that are followed leading up
to and during a trial are discussed in this chapter, civil procedure and trial
practice are governed by each state’s statutory requirements. Cases on a
federal level are governed by federal statutory requirements.
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▸ PLEADINGS
The pleadings of a case are the written statements of fact and law filed with a
court by the parties to a lawsuit. The pleadings generally include such papers
as the complaint, demurrer, counterclaims, answer, and bill of particulars. The
parties to a controversy are the plaintiff and the defendant. The plaintiff is the
person who initiates an action by filing a complaint. The defendant is the
person against whom a lawsuit is brought. Many cases have multiple plaintiffs
and defendants.
Summons and Complaint
The complaint is the first pleading in a lawsuit. It sets forth the relevant
allegations of fact that give rise to one or more legal causes of action, along
with the damages requested. The complaint identifies the parties to a suit,
states a cause of action, and includes a demand for damages. The essential
elements of a complaint include the following:
1. A short, concise statement of the grounds on which the court’s
jurisdiction depends (the court’s authority to hear the case)
2. A statement of the claim demonstrating that the pleader is entitled to
relief
3. A demand for judgment for the relief to which the plaintiff deems him-
or herself entitled
All of these elements apply to any counterclaim, cross claim, or third-party
claims.
The summons is the legal document issued by a court and served on an
individual announcing that a legal proceeding has been commenced. The
summons provides the date and place where the defendant must appear to
respond to and answer the complaint. In some jurisdictions, a complaint must
accompany a summons (an announcement to the defendant that a legal action
has been commenced).
A complaint can be served on a defendant either with the summons or within a
prescribed time after the summons has been served. The formalities that must
be followed when serving a summons so that appropriate jurisdiction over a
defendant is obtained include the manner in which the summons is to be
delivered, the time period within which the delivery must occur, and the
geographic limitations within which service must be made. EXHIBIT 8-1 is an
example of a summons.
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EXHIBIT 8-1 Summons in a civil action.
Reproduced from Summons in a Civil Action
http://www.uscourts.gov/uscourts/FormsAndFees/Forms/AO440 . Accessed August 13, 2014.
Improper Service of a Summons
Improper service of a complaint or summons is not effective if it is incorrectly
served. Such failure does not prevent a complaint from being properly
reserved as required by law in the state where the summons or complaint is
served.
Improper service of a summons occurred on March 14, 1989, when a sheriff
attempted to serve the writ on the defendant by leaving a copy with the
receptionist at the hospital where he had worked. The defendant had
terminated his relationship with the hospital on February 22, 1988. The
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http://www.uscourts.gov/uscourts/FormsAndFees/Forms/AO440

plaintiff’s attempted service of the writ of summons was therefore defective,
because the defendant was not affiliated with the hospital where service of the
summons was attempted. A copy of the complaint was left with a nurse at the
intensive care unit of the hospital where the defendant was then a patient. The
intensive care unit of a hospital, however, was not deemed the defendant-
patient’s place of residence. “Where service of process is defective, the proper
remedy is to set aside the service. In that event, the action remains open, but
it cannot proceed against a defendant unless the plaintiff can thereafter effect
service on such defendant which is sufficient to vest jurisdiction in the court.”
Demurrer
A demurrer is a pleading in a lawsuit by the defendant challenging the legal
adequacy of the plaintiff’s complaint. The pleading represents preliminary
objections that are constructed so as to preempt “answering” the plaintiff’s
complaint. A demurrer, for example, can be filed by one of the parties to a
lawsuit claiming that the evidence presented by the other party is insufficient to
sustain an issue or case.
Answer
After service of a complaint, a response is required from the defendant in a
document termed the answer. The answer to a complaint requires the
defendant to respond to each of the allegations contained in the complaint by
stating his or her defenses and by admitting to or denying each of the plaintiff’s
allegations. If the defendant fails to answer the complaint within the prescribed
time, the plaintiff can seek judgment by default against the defendant.
However, in certain instances, a default judgment will be vacated if the
defendant can demonstrate an acceptable excuse for failing to answer.
Personal appearance of the defendant to respond to a complaint is not
necessary. To prevent default, the defendant’s attorney responds to the
complaint with an answer. The defense attorney attempts to show, through
evidence, that the defendant is not responsible for the negligent act claimed by
the plaintiff to have occurred. The answer generally consists of a denial of the
charges made and specifies a defense or argument justifying the position
taken. The defense can show that the claim is unfounded, for example,
because: (1) the period within which a suit must be instituted has expired; (2)
there is contributory negligence on the part of the plaintiff; (3) any financial
obligation has been remunerated; (4) a general release was provided to the
defendant; or (5) a contract was illegal and therefore null and void. The
original answer to the complaint is filed with the court having jurisdiction over
the case, and a copy of the answer is provided to the plaintiff’s attorney.
Counterclaim
A counterclaim is generally filed with the answer denying the plaintiff’s claims
by alleging that it was the plaintiff and not the defendant who committed a
wrongful act, and therefore, it is the defendant who is entitled to damages. For
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example, the plaintiff could sue a hospital for personal injuries and property
damage caused by the negligent operation of the hospital’s ambulance. The
hospital could file a counterclaim on grounds that its driver was careful and
that it was the plaintiff who was negligent and is liable to the hospital for
damage to the ambulance.
Bill of Particulars
A bill of particulars is a written request by the defendant for more detailed
information from the plaintiff regarding the allegation(s) and claim(s) made
than is provided in the initial complaint. If a counterclaim has been filed, the
plaintiff’s attorney also can request a bill of particulars from the defendant.
More specifically, a bill of particulars in a malpractice case may include a
request that the plaintiff provide the defendant information that includes the
following:
Date and time the alleged malpractice occurred
Specific injuries alleged
Where the alleged malpractice occurred
The commissions and/or omissions constituting the malpractice
alleged to have occurred, for example:
Misdiagnosis or failure to diagnose
Failure to perform a test or diagnostic procedure
Failure to medicate, treat, or operate
A contraindicated test given or a contraindicated test or surgical
procedure performed
Administration of a medicine or treatment or performance of a
test or surgical procedure in a manner contrary to accepted
standards of medical practice
Removal of the wrong body part
How the alleged malpractice occurred
A listing of injuries claimed to have been caused by the defendant’s
alleged malpractice
A listing of any witnesses to the alleged malpractice
A listing of damages claimed, for example:
Pain and suffering
Length of time the plaintiff was confined to bed
Required rehabilitation
Permanent disabilities
Economic damages (e.g., lost wages)
The name and address of the plaintiff’s employer
A death action rider may also be attached if the malpractice allegedly caused
death. The rider may request such information as the length of time the
decedent experienced pain; the date, time, and place of death; and a
statement setting forth the cause of death.
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356

▸ DISCOVERY
Discovery is the process of investigating the facts of a case before trial. The
discovery process is available to promote more just trials by preventing unfair
surprise. “Discovery rules were promulgated to prevent trial by ambush. To
deny a party the right to know absolutely at some meaningful time before trial
the names and addresses of all witnesses the opposing side proposes to call
in its case-in-chief is an insult to this principle.” The objectives of discovery
are as follows:
1. Obtain evidence that might not be obtainable at the time of trial.
2. Isolate and narrow the issues for trial.
3. Gather knowledge of the existence of additional evidence that may be
admissible at trial.
4. Obtain leads to enable the discovering party to gather further evidence.
Discovery may be obtained on any matter that is not privileged and that is
relevant to the subject matter involved in the pending action. The parties to a
lawsuit have the right to discovery and to examine witnesses before trial.
Examination Before Trial
Examination before trial (EBT) is one of several discovery techniques used to
enable the parties of a lawsuit to learn more regarding the nature and
substance of each other’s case. An EBT consists of oral testimony under oath
and includes cross-examination. A deposition, taken at an EBT, is the
testimony of a witness that has been recorded in a written format. Testimony
given at a deposition becomes part of the permanent record of the case. Each
question and answer is transcribed by a court stenographer and may be used
at the subsequent trial. Truthfulness and consistency are important because
answers from an EBT that differ from those given at trial can be used to attack
the credibility of the witness.
Preparation of Witnesses
The manner in which a witness handles questioning at a deposition or trial is
often as important as the facts of the case. Each witness should be well
prepared before testifying. Preparation should include a review of all pertinent
records. Helpful guidelines for witnesses undergoing an EBT, a court hearing,
or examination during trial include the following:
Review the records (e.g., medical records and other business records)
on which you might be questioned.
Do not be antagonistic in answering the questions. The jury may
already be somewhat sympathetic toward a particular party to the
lawsuit; antagonism may serve only to reinforce such an impression.
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Be organized in your thinking and recollection of the facts regarding
the incident.
Answer only the questions asked.
Explain your testimony in simple, succinct terminology.
Do not overdramatize the facts you are relating.
Do not allow yourself to become overpowered by the cross-examiner.
Be polite, sincere, and courteous at all times.
Dress appropriately and be neatly groomed.
Pay close attention to any objections your attorney may have as to the
line of questioning being conducted by the opposing counsel. Do not
answer any question objected to by your legal counsel unless the
judge overrules the objection and says to you, “You may answer the
question.”
Be sure to have reviewed any oral deposition in which you may have
participated.
Be straightforward with the examiner. Any answers designed to cover
up or cloud an issue or fact will, if discovered, serve only to discredit
any previous testimony that you may have given.
Do not show any visible signs of displeasure regarding any testimony
with which you are in disagreement.
Be sure to have questions that you did not hear repeated and
questions that you did not understand rephrased.
If you are not sure of an answer, indicate that you are not sure or that
you do not know the answer.
Attorney–Client Privilege
Attorney–client privilege protects from discovery the communications between
the parties to a lawsuit and their attorneys. In order for such information be
protected from discovery, the following three elements must be established:
1. Both parties must agree that the attorney–client relationship does or
will exist.
2. The client must seek advice from the attorney in his or her capacity as
a legal advisor.
3. Communication between the attorney and client must be identified to
be confidential.
Attorney–client privilege is intended to ensure that a client remains free from
the apprehension that consultations with a legal advisor will be disclosed.
Such privilege encourages a client to talk freely with his or her attorney so that
he or she may receive meaningful legal advice. Likewise, with regard to the
work-product doctrine, not even the most liberal of discovery theories can
justify unwarranted inquiries into the files and the mental impressions of an
attorney. Courts are required to protect the integrity and fairness of the fact-
finding process by requiring full disclosure of all relevant facts connected with
the impending litigation while promoting full and frank consultation between a
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client and a legal advisor by removing the fear of compelled disclosure of
information.
Incident and Investigative Reports
Hospital incident and investigation reports are generally not protected from
discovery. The burden rests with the hospital to demonstrate incident and
investigation reports are protected from discovery under attorney–client
privilege and the work-product doctrine. If in connection with an accident or an
event, a business entity, in the ordinary course of business, conducts an
investigation for its own purposes, the resulting investigative report is
producible in civil pretrial discovery. The determination as to whether a
defendant’s in-house report was prepared in the ordinary course of business
or was a work product in anticipation of litigation is an important one. The fact
that a defendant anticipates litigation resulting from an accident or event does
not automatically qualify an in-house report as a work product. A document
that is not privileged does not become privileged by the mere act of sending it
to an attorney or by marking the documents as “privileged information.”
Statistical Data Not Necessarily Privileged
The collection of statistical data is not necessarily protected from discovery
during court proceedings. For example, the patient, Braverman, in Braverman
v. Columbia Hospital, Inc., underwent surgery and was subsequently
diagnosed with a nosocomial infection (hospital-acquired infection). She was
hospitalized several times for treatment of the infection.
Braverman filed a lawsuit and sought a variety of documents from the hospital.
The hospital objected on the grounds that some of the information sought by
Braverman was a record of its review and evaluation procedures under Wis.
Stat. § 146.38 and therefore was privileged. In its written decision, the trial
court found that the infection control materials, including meeting minutes,
infection rates, and the results of any investigations conducted by quality
assurance/peer review committees, were privileged. Braverman appealed.
As mandated by Wis. Admin. Code § HFS 124.08, the hospital maintains an
infection control committee (ICC). Its purpose is to influence and improve the
quality of health care through the practice of infection control. The ICC
recommends practices to reduce the risk of infection to patients, visitors, and
healthcare workers. The hospital infection control practitioners compile
infection statistics. The ICC conducts an investigation or study of any
postoperative infection for purposes of quality assurance. The ICC coordinates
its infection control processes in compliance with the bylaws and rules of the
medical staff in order to reduce the risk of hospital-acquired infections.
Braverman argued that this kind of statistical data is not covered by Wis. Stat.
§ 146.38, which provides:
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(3) Information acquired in connection with the review and evaluation of
health care services shall be disclosed and records of such review and
evaluation shall be released, with the identity of any patient whose
treatment is reviewed being withheld unless the patient has granted
permission to disclose identity, in the following circumstances:
. . . .
(d) In a report in statistical form. The report may identify any provider or
facility to which the statistics relate.
The appeals court concluded that “We see this language as clear and
unambiguous. And since Columbia’s statistical data qualifies under the
paragraph, we conclude that Braverman is entitled to discover this data.”
Such information is exempt from the privilege. Braverman was entitled to
discover the statistical reports of infection data.
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7
360

▸ MOTIONS
The procedural steps that occur before trial are specifically classified as
pretrial proceedings. After the pleadings have been completed, many states
permit either party to move for a judgment on the pleadings. When this motion
is made, the court will examine the entire case and decide whether to enter
judgment according to the merits of the case as indicated in the pleadings. In
some states, the moving party is permitted to introduce sworn statements
showing that a claim or defense is false or a sham. This procedure cannot be
used when there is substantial dispute concerning the facts presented by the
affidavits.
Motion to Dismiss
A defendant may make a motion to dismiss a case, alleging that the plaintiff’s
complaint, even if believed, does not set forth a claim or cause of action
recognized by law. A motion to dismiss can be made before, during, or after a
trial. Motions made before a trial may be made on the basis that the court
lacks jurisdiction, that the case is barred by the statute of limitations, that
another case is pending involving the same issues, and other similar matters.
A motion by the defendant during trial may be made after the plaintiff has
presented his or her case, on the grounds that the court has heard the
plaintiff’s case and the defendant is entitled to a favorable judgment as a
matter of law. In the case of a motion made by the defendant at the close of
the plaintiff’s case, the defendant normally will claim that the plaintiff has failed
to present a prima facie case (i.e., that the plaintiff has failed to establish the
minimum elements necessary to justify a verdict even if no contrary evidence
is presented by the defendant). After a trial has been completed, either party
may move for a directed verdict on the grounds that he or she is entitled to
such verdict as a matter of law.
Dismissal Denied
Procedural issues can result in a case being referred back to the trial court for
further proceedings as noted in the following case, where Jean Pierrot, as
personal representative of the deceased, filed a complaint alleging that Farrah,
a 25-year-old pregnant woman, went to a hospital in the afternoon with
complaints of abdominal pain. That evening, the hospital transferred Farrah
involuntarily to Park Place, a behavioral health facility. The involuntary transfer
of Farrah was allowed under the Florida Mental Health Act of 1971, commonly
referred to as the Florida Baker Act, which allows for involuntary examination
and commitment. Judges, law enforcement officials, physicians, or mental
health professionals can initiate it. There must be evidence that the person
possibly has a mental illness or may harm him- or herself or others. When
Farrah arrived at Park Place she was in distress, complaining of severe
abdominal pain and other symptoms. Over the next 2 days, Park Place
employees committed various acts and omissions that resulted in her death.
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The complaint alleged a wrongful death claim for violations of Farrah’s rights
as a patient under the Baker Act. Park Place, in response, disagreed and
moved to dismiss Pierrot’s wrongful death claim, arguing that the claim was
one for medical malpractice and that Pierrot failed to comply with the pre-suit
requirements of the Medical Malpractice Act.
The trial court dismissed Pierrot’s claim, deciding that the main point of the
claim was that Park Place failed to properly respond to Farrah’s physical
symptoms of severe abdominal pain, and therefore, the claim was one for
medical negligence. Thus the court ruled Pierrot could not avoid the pre-suit
requirements of the Medical Malpractice Act by pleading the claim under the
Baker Act.
On appeal, Pierrot argued that a plaintiff claiming only violations of a mental
health patient’s rights under the Baker Act is not required to comply with the
medical malpractice pre-suit requirements. Additionally, Pierrot contended the
pre-suit requirements do not apply to his claim because Park Place was not a
healthcare provider. The Court of Appeal of Florida agreed with both
arguments.
According to the complaint, Park Place was a licensed mental health facility
and not a healthcare provider. The court found that Park Place failed to
establish that it was a healthcare provider for purposes of the pre-suit
requirements. The case was reversed and remanded back to the trial court for
further proceedings.
This case illustrates the importance of preserving all causes of action and
positions that the plaintiff’s attorney may wish to argue at trial. Cases referred
back to the trial court are difficult to follow up because further deliberations
often prove to be more damaging than helpful. Defendants may decide that a
settlement is less costly than a lawsuit that could drag on for years and gain
the attention of the news media. The “Newspaper Clippings” dispersed
throughout the text, often high-profile cases, are often settled out of the
courtroom due to the negative impact they can have on the reputation of the
healthcare provider(s).
Motion for Summary Judgment
A motion for summary judgment can be made when either party to a lawsuit
believes that there are no triable issues of fact and that only issues of law
need to be decided. This motion asks the court to rule that there are no facts
in dispute and that the rights of the parties can be determined as a matter of
law, on the basis of submitted documents, without the need for a trial.
Summary judgment is generally granted when the evidence demonstrates that
there are no genuine issues of material fact and the moving party is entitled to
judgment as a matter of law. Although the courts are reluctant to look
favorably on motions for summary judgment, they will grant them if the
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circumstances of a particular case warrant it. The plaintiff, for example, in
Thomas v. New York University Med. Ctr., while under general anesthesia,
slid off the operating table during a surgical procedure. The plaintiff’s head
was pulled out of a head-stabilizing device, causing his head to be lacerated
by one of the pins. The plaintiff suffered trauma to his neck and required
mechanical assistance to breathe for 6 days following the accident. The
Supreme Court, Appellate Division, on motion by the plaintiff, determined that
summary judgment on the issue of liability was warranted. It could easily be
reasoned that anesthetized patients do not fall from operating tables in the
absence of negligence. The defendants, who were in joint and exclusive
control of the plaintiff, failed to explain their conduct in the operating room, and
their failure to do so mandated summary judgment.
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▸ PRETRIAL CONFERENCE
In many states, a pretrial conference can be ordered at the judge’s initiative or
on the request of one of the parties to the lawsuit. The pretrial conference is
an informal discussion during which the judge and the attorneys eliminate
matters not in dispute, agree on the issues, and settle procedural matters
relating to the trial. Although it is not the purpose of the pretrial conference to
compel the parties to settle the case, it often happens that cases are settled at
this time.
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▸ NOTICE OF TRIAL
The examination before trial may reveal sufficient facts that would discourage
the plaintiff from continuing the case, or it may encourage one or both parties
to settle out of court. Once a decision to go forward is reached, the case is
placed on the court calendar.
Postponement of a trial may be secured with the consent of both parties and
consent of the court. A case may not be postponed indefinitely without being
dismissed by the court. If one party is ready to proceed and another party
seeks a postponement, a valid excuse must be shown. Should a defendant fail
to appear at trial, the judge can pass judgment against the defendant by
default. A case also can be dismissed if the plaintiff fails to appear at trial.
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▸ MEMORANDUM OF LAW
A memorandum of law (or trial brief) presents to the court the nature of the
case, cites case decisions to substantiate arguments, and aids the court
regarding points of law. Trial briefs are prepared by both the plaintiff’s and the
defendant’s attorneys. A trial brief is not required, but it is a recommended
strategy. It provides the court with a basic understanding of the position of the
party submitting the trial brief before the commencement of the trial. It also
focuses the court’s attention on specific legal points that may influence the
court in ruling on objections and on the admissibility of evidence in the course
of the trial.
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▸ THE COURTROOM AND THE JUDGE
A case is heard in the court that has jurisdiction over the subject in
controversy. The judge presides over court proceedings, decides questions of
law, and is responsible for ensuring that a trial is conducted properly, in an
impartial manner, and that it is fair to both parties to a lawsuit. The judge
determines what constitutes the general standard of conduct required of the
defendant for the exercise of due care. The judge informs the jury of what the
defendant’s conduct should have been, thereby making a determination of the
existence of a legal duty.
The judge decides whether evidence is admissible, charges the jury (defines
the jury’s responsibility in relation to existing law), and may take a case away
from the jury (by directed verdict or make a judgment notwithstanding the
verdict) when he or she believes that there are no issues for the jury to
consider or that the jury has erred in its decision. This right of the judge with
respect to the role of the jury narrows the jury’s responsibility with regard to
the facts of the case. The judge maintains order throughout the suit,
determines issues of procedure and law, and is generally responsible for the
conduct of the trial. On the appeals level, a panel of judges review the
arguments of the defendant’s and plaintiff’s attorneys in order to make a
determination as to whether the trial court’s decision should be sustained,
overruled, or sent back to the trial court with instructions for further
proceedings.
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▸ THE JURY
The jury reviews the facts of a case offered by opposing counsels and makes
an impartial decision as to the guilt of the defendant(s). Members of the jury
are selected from a jury list. They are summoned to court by a paper known as
the jury process. The number of jurors who sit at trial is 12 in common law. If
there are fewer than 12, the number must be established by statute.
Jury Selection Process
Counsel for both parties to a lawsuit question each prospective jury member
for impartiality, bias, and prejudicial thinking. This process is referred to as the
voir dire, the examination of jurors. Once members of the jury are selected,
they are sworn in to try the case. The jury, when reviewing the facts of a case,
determine what occurred, evaluate whether the plaintiff’s damages were
caused by the defendant’s negligence, and decide whether the defendant
exercised due care. The jury must pay close attention to the evidence
presented by both sides of a suit in order to render a fair and impartial verdict.
Jurors who fall asleep during the trial can be replaced with an alternate juror,
as was the case in Richbow v. District of Columbia. The juror in this case
“had been sleeping through the evidence and appellant’s counsel
acknowledged that fact.”
Waiver of Trial by Jury
The right to a trial by jury is a constitutional right, but an individual may waive
the right to a jury trial. If this right is waived, the judge acts as judge and jury,
becoming the trier of facts and deciding issues of law.
A Jury Decision
A New York City jury awarded $26 million to a boy injured during surgery.
What was it that so disturbed the jury that caused it to grant such a huge
award? According to an article written by an alternate juror, who invited the
jurors to his home 3 weeks after the trial:
The defense lawyers were on their feet objecting they didn’t want the jury
to see Stephen. But that just raised a question for us: If his injuries were as
slight as the defense had been insisting, why the resistance? The judge
agreed that it was proper for Stephen to appear at his own trial, and the
rear doors to the courtroom were opened.
Most of the jurors had begun to cry. But we were also angry. The defense
lawyers it seemed, had been trying to put one over on us, claiming that
Stephen was a normal teenage boy with a few minor handicaps.
For seven weeks, the jury had sat in that courtroom listening to the defense
lawyers belittle Stephen’s problems. We saw the doctors refuse to
acknowledge Stephen’s handicaps or to accept responsibility for them. To
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the jury at least, it seemed that the doctors had made mistakes, refused to
admit them, and then tried to cover them up.12
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▸ SUBPOENAS
A subpoena is a legal order requiring the appearance of a person and/or the
presentation of documents to a court or administrative body. Attorneys,
judges, and certain law enforcement and administrative officials, depending on
the jurisdiction, may issue subpoenas. Subpoenas generally include: a
reference number; names of the plaintiff(s) and defendant(s); the date, time,
and place to appear; the name, address, and telephone number of the
opposing attorney; and the documents requested if the subpoena is for
records.
Some jurisdictions require the service of a subpoena at a specified time in
advance of the requested appearance (e.g., 24 hours). In other jurisdictions,
no such time limitation exists. A court clerk, sheriff, attorney, process server,
or other person as provided by state statute can serve a subpoena.
A subpoena ad testificandum orders the appearance of a person at a trial or
other investigative proceeding to give testimony. Witnesses have a duty to
appear and may suffer a penalty for contempt of court should they fail to
appear. They may not deny knowledge of a subpoena if they simply refused to
accept it. The court may issue a bench warrant, ordering the appearance of a
witness in court, if a witness fails to answer a subpoena. Failure to appear
may be excused if extenuating circumstances exist.
A subpoena for records, known as a subpoena duces tecum, is a written
command to bring records, documents, or other evidence described in the
subpoena to a trial or other investigative proceeding. The subpoena is served
on the individual or entity able to produce such records. Refusal to respond to
a subpoena duces tecum is considered to be contempt of court and carries a
penalty of a fine, imprisonment, or both.
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▸ BURDEN OF PROOF
The burden of proof in a civil case is the obligation of the plaintiff to persuade
the jury regarding the truth of his or her case. A preponderance of the credible
evidence must be presented for a plaintiff to recover damages. Credible
evidence is evidence that, in the light of reason and common sense, is worthy
of belief. A preponderance of credible evidence requires that the prevailing
side of the case carry more weight than the evidence on the opposing side. In
a negligence case, the burden of proof requires that the plaintiff’s attorney
show that the defendant violated a legal duty by not following an acceptable
standard of care and that the plaintiff suffered injury because of the
defendant’s breach. If the evidence presented does not support the allegations
made, the case is dismissed. When a plaintiff, who has the burden of proof,
fails to sustain such burden, the case can be dismissed despite the failure of
the defendant to present any evidence to the contrary on his or her behalf. The
burden of proof in some states shifts from the plaintiff to the defendant when it
is obvious that the injury would not have occurred unless there was
negligence.
The burden of proof in a criminal case requires that evidence presented
against the defendant must be proven beyond a reasonable doubt by the
prosecuting attorney. Note the terminology: reasonable doubt—not “all” doubt.
In a criminal case, the burden of proof lies with the prosecution. The
prosecution has the burden of proving each element of a crime beyond a
reasonable doubt. In a civil suit, the plaintiff has the burden of proving the
case by a preponderance of the evidence. In other words, the evidence
presented must demonstrate that, in a malpractice case for example, it is more
likely than not that the defendant or defendants caused the patient’s alleged
injuries. The evidence presented by the plaintiff need only tip the scales of
justice.
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▸ RES IPSA LOQUITUR
Res ipsa loquitur (“the thing speaks for itself” or “circumstances speak for
themselves”) is the legal doctrine that shifts the burden of proof in a
negligence case from the plaintiff to the defendant. It is an evidentiary device
that allows the plaintiff to make a case legally adequate to go to the jury on the
basis of well-defined circumstantial evidence, even though direct evidence is
lacking. This does not mean that the plaintiff has fully proven the defendant’s
negligence—it merely shifts the burden of going forward in a lawsuit to the
defendant, who must argue to dismiss the circumstantial evidence presented.
The general rule for negligence cases going forward on the basis of res ipsa
loquitur does not require the plaintiff to eliminate all possible causes of a
patient’s injuries. The inference under the doctrine of res ipsa loquitur is that
the circumstantial evidence offered is sufficient to shift the burden of proof
from the plaintiff to the defendant because it is more probable than not that the
defendant’s actions were the cause of the patient’s injuries. In other words, an
inference of negligence is permitted from the mere occurrence of an injury
when the defendant owed a duty and possessed the sole power of preventing
the injury by the exercise of reasonable care.
The three elements necessary to shift the burden of proof from the plaintiff to
the defendant under the doctrine of res ipsa loquitur are as follows:
1. The event would not normally have occurred in the absence of
negligence.
2. The defendant had exclusive control over the instrumentality that
caused the injury.
3. The plaintiff did not contribute to the injury.
Burns While Bathing Patient
An action was brought against the nursing facility in Franklin v. Collins Chapel
Correctional Hospital to recover damages for the wrongful death of an 82-
year-old resident. Extensive thermal burns were discovered soon after an
attendant bathed the resident. The complaint sought to invoke the doctrine of
res ipsa loquitur because the injuries suffered by the resident do not occur in
the absence of negligence, and the decedent was in the defendant’s sole care,
custody, and control.
The trial court entered a judgment for the nursing facility pursuant to a jury
verdict, and the administrators of the estate appealed. The appeals court held
that proof that the nursing facility had exclusive control over the bath wherein
burns were allegedly suffered and that the burns normally would not occur
absent negligence entitled the administrators to a jury instruction on the
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doctrine of res ipsa loquitur. The case was reversed and remanded for a new
trial.
Burn by Electrocautery Unit
The patient in Mack v. Lydia E. Hall Hospital was properly permitted to
invoke the doctrine of res ipsa loquitur in her suit to recover damages for a
third-degree burn on the side of her left thigh, which was caused by an electro-
coagulator used during surgery.
The plaintiff, while under anesthesia, sustained third degree burns on the
side of her left thigh during the course of a surgical procedure for the
treatment of rectal cancer. The defendant Dr. Josef Jahr was the surgeon
in charge of the operation. An electrical instrument called an electro-
coagulator was used during the procedure to coagulate blood vessels and
stop bleeding. A component part of the electro-coagulator known as a
grounding pad was placed on the plaintiff’s left thigh and remained there
throughout the surgery. Electric current flowed through this grounding pad
and the flow. Dr. Jahr controlled increase of that current. When the
grounding pad was removed at the conclusion of the operation, a burn
more than one-half-inch deep and over two inches in diameter was
discovered on the skin directly underneath the area where the pad had
been.
The prerequisites for application of the doctrine were satisfied by the
circumstantial evidence presented. The injury could not have occurred in the
absence of negligence, the surgeon had exclusive control over the electro-
coagulator, and the patient had not been a participant in the surgical
procedure and therefore did not contribute to her injury.
RES IPSA LOQUITUR AND EXCLUSIVE CONTROL
Citation: Seavers v. Methodist Medical Center of Oak Ridge, 9 S.W.3d 86
(Tenn. 1999)
Facts
While in the intensive care unit (ICU), a nurse’s note indicated that the grip
in Seavers’s right hand was weaker than that in her left hand. Both of her
hands had been placed in wrist restraints and fastened to bed rails to
prevent her from pulling out her endotracheal tube. When the endotracheal
tube was removed and the appellant could speak, she complained that her
right arm was numb; Seavers had suffered severe damage to her right ulnar
nerve. The appellant and her husband filed suit against the medical center,
alleging that the injury was the result of the nurses negligently restraining
her arm. She later amended her complaint to include the theory of res ipsa
loquitur.
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The medical center filed a motion for summary judgment, supported by the
affidavits of two experts. Both experts opined that the nerve damage in the
appellant’s right arm was “of unknown etiology” and that the injury could
have developed during her stay in the ICU without any deviation from
standards of professional care.
The appellant opposed the medical center’s motion for summary judgment,
arguing that there were genuine issues of material fact. The appellant’s
response was supported by the deposition of Natelson, a neurosurgeon, and
the affidavits of both Natelson and Woodworth, a registered nurse who
worked in the ICU. Both Natelson and Woodworth opined that the appellant
was under the exclusive control and care of the medical center’s nursing
staff when the nerve injury occurred. Natelson and Woodworth stated that
when treating ICU patients who are unconscious or under heavy sedation or
restraint, the standard of professional care requires the protection of the
patients’ extremities so that injuries to the ulnar nerves do not occur. Based
on their independent review of the appellant’s medical records and
electromyography (EMG) results, they opined that the injury was the type
that would not have occurred if the nursing staff had upheld the standard of
care.
Finding no genuine issues of material fact, the trial court granted the medical
center’s motion for summary judgment. A majority of the court of appeals
affirmed the trial court’s order granting summary judgment for the medical
center. The court of appeals held that res ipsa loquitur did not apply
because the appellant’s injury was not within the common knowledge of
laypersons.
Issue
Does the doctrine of res ipsa loquitur apply in this case?
Holding
The judgments of the lower courts were reversed, and the case was
remanded to the trial court for further proceedings under the doctrine of res
ipsa loquitur.
Reason
The parties agreed that the appellant was under the exclusive control and
care of the medical center when the nerve injury occurred. The record
further shows that the appellant’s right arm and hand were fully functional
when she entered the medical center’s ICU and that no problem was
detected until the ICU nurses noticed that the grip in her right hand was not
as strong as the grip in her left hand. During that time, the appellant was
heavily sedated, restrained, and under the complete care of the ICU nurses.
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Based on EMG results, the appellant has shown that the dysfunction in her
right arm resulted from damage to her right ulnar nerve. According to
Natelson, this injury was likely caused by prolonged pressure on the nerve
from a hard object such as a bed rail. This theory was corroborated by
evidence that the appellant’s arms were strapped to the hospital bed during
her stay in the ICU. The appellant satisfied the res ipsa loquitur
requirements under Tennessee code and raised a genuine issue of material
fact on the allegation of negligence. Summary judgment for the medical
center was improper in this case.
Oxygen Mask Catches Fire
The oxygen mask in Gold v. Ishak caught fire during surgery. In performing
surgery, the physician used an electrocautery unit provided by the hospital. At
some point during surgery, the oxygen mask caught on fire, and the patient
was injured. A claim of negligent treatment was presented to a medical review
panel, which concluded that the medical providers had complied with the
requisite standard of care.
The plaintiff filed a complaint against the medical providers for medical
malpractice. The trial court refused to apply the doctrine of res ipsa loquitur.
On appeal, the trial court was found to have erred by refusing to apply the
doctrine. The evidence presented at trial, as described here, clearly shows
that the elements necessary for the inference of res ipsa loquitur had been
established:
1. A fire under these circumstances is such that in the ordinary course of
things would not have occurred if the medical providers had used
proper care in relation to the electrocautery unit and oxygen mask.
2. The injuring instrumentality was under the management or exclusive
control of the medical providers.
3. The patient could not have contributed to her injury, as she was not a
participant in her surgery.
Expert testimony is not required because a fire occurring during surgery where
an instrument that emits a spark is used near a source of oxygen is not
beyond the realm of the layperson to understand. It is easily understandable to
the common person that careless use of the two could cause a fire and result
in bodily injury.
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376

▸ OPENING STATEMENTS
During the opening statement, the plaintiff’s attorney presents a summary of
the allegations against the defendant and the credible evidence favorable to
his or her client. The opening statement by the plaintiff’s attorney provides, in
capsule form (1) the facts of the case, (2) what he or she intends to prove by
means of a summary of the evidence to be presented, and (3) a description of
the damages to the plaintiff(s). The opening statement must be concise and
relevant.
The defense attorney makes his or her opening statement indicating the
position of the defendant and the points of the plaintiff’s case he or she intends
to refute. The defense attorney explains the facts as they apply to the case for
the defendant.
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▸ EXAMINATION OF WITNESSES
After conclusion of the opening statements, the judge calls for the plaintiff’s
witnesses. An officer of the court administers an oath to each witness, and
direct examination begins. The attorney obtains information from each witness
in the form of questions. On cross-examination by the defense, an attempt is
made to challenge or discredit the plaintiff’s witness. The defense may claim,
for example, that the witness is biased toward the defendant, the plaintiff’s
witness lacks knowledge as to the facts of the case, or the witness’s testimony
is inconsistent with other facts presented in the case. Redirect examination by
the plaintiff’s attorney can follow the cross-examination, if so desired. The
plaintiff’s attorney may at this time wish to have his or her witness review an
important point that the jury may have forgotten during cross-examination. The
plaintiff’s attorney may ask the same witness more questions in an effort to
overcome the effect of the cross-examination. The defense attorney may then
conduct a recross-examination of the witness, if necessary, in defense of the
defendant.
A sampling of a seemingly endless number of questions that a defendant
physician, for example, might expect to be asked during a personal injury case
often includes the following:
1. Could you state for the court your name, residence, and any prior
residences?
2. Where did you attend medical school?
3. Are you licensed in this state?
4. Are you licensed to practice medicine in any other state?
5. Where did you serve your internship?
6. Where did you serve your residency?
7. Is your practice general medicine?
8. Are you qualified to practice in any other specialty?
9. Are you board certified?
10. In what specialties are you board certified?
11. How does a physician obtain board certification?
12. Are you presently practicing medicine?
13. How long have you been in practice?
14. On or about ________ (date), did you have occasion to see the patient
on a professional basis?
15. Where did you first see the patient?
16. Could you describe the patient’s condition at the time?
17. What, if anything, did you do on that occasion?
18. Have you been practicing as a physician since that date?
19. What initial complaints did the patient present to you?
20. Describe the initial assessment you performed on the patient.
21. Did you see the patient daily, several times a day, at first?
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22. Did you continue to see the patient?
23. How often did you see the patient?
24. Describe the treatment you rendered.
25. Did you find it necessary to refer the patient for consultation purposes?
26. Did there come a time when you found it necessary to refer, admit, or
transfer the patient to a hospital, different hospital, rehab facility, or
other healthcare entity?
The credibility of a witness may be impeached if prior statements are
inconsistent with later statements or if there is bias in favor of a party or
prejudice against a party to a lawsuit. As noted previously, either attorney to a
lawsuit may ask the judge for permission to recall a witness for questioning.
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▸ JUDICIAL NOTICE RULE
The judicial notice rule prescribes that well-known facts (e.g., fractures require
prompt attention, two X-rays of the same patient may show different results)
need not be proven. In other words, a court recognizes that a particular fact in
a case is so commonly known by the average person that expert testimony is
not necessary to establish the fact. The importance of this ruling is to prevent
the parties to a lawsuit from endlessly arguing issues that are well known and
accepted by the average person as fact. If a fact can be disputed, the rule
does not apply. The need to order a computed tomography (CT) scan or
magnetic resonance imaging (MRI), for example, as a diagnostic tool to
diagnose a suspected skull fracture, can be considered a matter of common
knowledge to which a court, in the absence of expert testimony, can take
judicial notice. Should a patient have a serious fall and a fracture is indicated,
under the foregoing rule, it is a matter of common knowledge that the ordinary
physician in good standing, in the exercise of ordinary care and diligence,
would have ordered the appropriate diagnostic tests.
The court applied the judicial notice rule in Arthur v. St. Peter’s Hospital,
where the patient-plaintiff sought treatment in the emergency department of
St. Peter’s Hospital after an injury to his left wrist. After being examined, he
was sent to the radiology department for X-rays of his wrist. He later was
released after being advised that there were no fractures. As a result of
continued swelling and pain, the plaintiff decided to seek care from another
physician, who subsequently diagnosed a fracture of the navicular bone. The
plaintiff sued, and the hospital motioned for summary judgment, stating that
the physicians were independent contractors and not employees of the
hospital. Copies of the emergency department record, X-ray report, and billing
record contained the logo of the hospital. There was no notification on the
records to identify the physicians as being independent contractors. The court
took judicial notice, finding that people who seek medical help through hospital
emergency departments are unaware of the status of the different
professionals working there. Unless a patient had been put, in some manner,
on notice that those physicians with whom he might come into contact during
the course of his treatment were independent contractors, it would be natural
to assume that they were employees of the hospital.
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▸ EVIDENCE
Evidence consists of the facts proved or disproved during a lawsuit. The law of
evidence is a body of rules under which facts are proven. The rules of
evidence govern the admission of items of proof in a lawsuit. A fact can be
proven by either direct or circumstantial evidence. Evidence must be
competent, relevant, and material to be admitted at trial. In a negligence case,
there must be reasonable evidence that the resulting injury does not occur in
the ordinary course of patient care if proper care is rendered.
Evidence is generally offered in the form of oral testimony through witnesses,
written or computer-generated documents, and physical evidence, such as
digital imaging studies. The different forms of evidence are presented below.
Direct Evidence
Direct evidence is proof offered through direct testimony. It is the jury’s
function to receive testimony presented by witnesses and draw conclusions in
the determination of facts. The law recognizes that a jury is composed of
ordinary men and women and that some fact-finding will involve subjects
beyond their knowledge. When a jury cannot otherwise obtain sufficient facts
from which to draw conclusions, an expert witness who has special
knowledge, skill, experience, or training can be called on to submit an opinion.
The expert witness assists the jury when the issues to be resolved in the case
are outside the experience of the average juror.
Laypeople are able to render opinions about a great variety of general
subjects, but for technical questions, the opinion of an expert is necessary.
During the examination of an expert witness, his or her training, experience,
and special qualifications are explained to the jury. The experts will be asked
to give an opinion concerning hypothetical questions based on the facts of the
case. Should the testimony of two experts conflict, the jury will determine
which expert opinion to accept. Expert witnesses may be used to assist a
plaintiff in proving the wrongful act of a defendant or to assist a defendant in
refuting such evidence. In addition, expert testimony may be used to show the
extent of the plaintiff’s damages or to show the lack of such damages. To
qualify as an expert witness in a specified area, that person must have the
appropriate training, experience, and qualifications necessary to explain
and/or answer questions based on the facts of a particular case.
Not all negligence cases require testimony from an expert witness. Citing
Donovan v. State: “If a doctor operates on the wrong limb or amputates the
wrong limb, a plaintiff would not have to introduce expert testimony to
establish that the doctor was negligent. On the other hand, highly technical
questions of diagnoses and causation which lie beyond the understanding of a
layperson require introduction of expert testimony.”19
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Admissibility of Expert Testimony
Expert testimony concerning what a reasonable patient wants to know and
what doctors think patients want to know was found to be admissible in
Marsingill v. O’Malley, where the patient sued the physician for medical
malpractice, alleging that information he had given her over the telephone,
relating to her report of abdominal pain and nausea several months after
stomach surgery, did not allow her to make an intelligent decision to seek
emergency room treatment. Expert testimony by doctors who had extensive
experience in interacting with patients was found to be relevant concerning the
amount and kinds of information that patients generally want in late-night
phone calls and was relevant to establish whether the physician had given the
patient as much information as a reasonably prudent patient would want to
know.
Pharmacist Not Always a Qualified Witness
The pharmacist in Nail v. Laros was found not competent to render an expert
opinion regarding the proper standard of care required of a physician
practicing a medical specialty. The patient, Mrs. Nail, developed a
staphylococcal infection following spinal surgery. The orthopedic surgeon, Dr.
Laros, treated the patient with the antibiotic Ancef for 6 days. The patient was
released from the hospital without any sign of an infection. The patient, while
under the treatment of another orthopedic surgeon (Hanley), was discovered
through blood tests to have contracted a staphylococcal infection at the
operative site. The patient eventually developed osteomyelitis. She brought a
lawsuit against Laros for negligence in diagnosing and treating her infection.
Nail obtained an affidavit from a pharmacist (Neff), who stated an opinion that
Laros should have treated the patient for a longer period on Ancef and that his
failure to do so was the proximate cause of Nail’s staphylococcal infection
found by Hanley. The court reasoned that there was nothing in the record to
support the pharmacist’s claim of being an expert in this case. Neither his
education nor his training qualified him to be an expert on equal footing with a
board-certified orthopedic surgeon in diagnosing and treating infections
associated with surgical implants. The court of appeals took judicial notice by
ruling that the pharmacist cannot legally prescribe medication and is even
prohibited from dispensing a dangerous drug, which by definition includes
Ancef, without a valid prescription from a practitioner.
Gross Negligence
In medical malpractice cases where lack of care or want of skill is so gross as
to be apparent or the alleged breach relates to noncomplex matters of
diagnosis and treatment within the understanding of lay jurors by resort to
common knowledge and experience, failure to present expert testimony on the
accepted standard of care and degree of skill under such circumstances is not
fatal to a plaintiff’s prima facie case showing of negligence. The court in
McGraw v. St. Joseph’s Hospital reviewed cases addressing hospital fall
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incidents and found that a majority of jurisdictions do not require expert
testimony in cases such as the following:
1. A bed rail is left down contrary to the physician’s order and the patient
falls and is injured.
2. A patient known to be in weakened condition is left alone in a shower
and falls.
3. A nurse fails to respond to a sedated patient’s call and the patient gets
out of bed and falls.
A hospital owes the patient a duty to exercise reasonable care in rendering
care, and in the performance of such duty, due regard must be given to the
mental and physical condition of the patient of which the hospital, in the
exercise of reasonable care, should have knowledge. If a patient requires
professional care, then expert testimony as to the standard of care is
necessary. The standard of nonmedical, administrative, ministerial, or routine
care in a hospital need not be established by expert testimony. A jury is
competent from its own experience to determine and apply a reasonable care
standard.
Demonstrative Evidence
Demonstrative (real) evidence is proof furnished by things themselves. It is
considered the most trustworthy and preferred type of evidence. It consists of
tangible objects to which testimony refers (e.g., medical instruments and
broken infusion needles) that can be requested by a jury. Demonstrative
evidence is admissible in court if it is relevant, has probative value, and serves
the interest of justice. It is not admissible if it will prejudice, mislead, confuse,
offend, inflame, or arouse the sympathy or passion of the jury. Other forms of
demonstrative evidence include photographs, motion pictures, X-ray films,
drawings, human bodies as exhibits, pathology slides, fetal monitoring strips,
safety committee minutes, infection committee reports, medical staff bylaws,
rules and regulations, nursing policy and procedure manuals, census data,
and staffing patterns. The plaintiff’s attorney uses all pertinent evidence to
reconstruct chronologically the care and treatment rendered.
Photographs
Photographs are a form of evidence. When presenting photographs as
evidence, the photographer or a reliable witness who is familiar with the object
photographed must testify that the picture is an accurate representation and a
fair likeness of the object portrayed. The photograph must not exaggerate a
client’s physical condition, as such exaggeration could unfairly prejudice a jury.
Photographs can be valuable legal evidence when they illustrate graphically
the nature and extent of a medical injury.
Videos also are valuable evidence. The same principles that apply to
photographs apply to videos. Videos must be accurately portrayed; the cutting
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and/or splicing of videos are suspect and may have no probative value. Videos
are admissible in court, assuming the matter being recorded, the time of the
recording, and the manner in which such recording took place can be
authenticated.
Under the Federal Rules of Evidence, Rule 1008— Functions of the Court and
Jury provide:
Ordinarily, the court determines whether the proponent has fulfilled the
factual conditions for admitting other evidence of the content of a writing,
recording, or photograph under Rule 1004 or Rule 1005. But in a jury trial,
the jury determines — in accordance with Rule 104 (b) — any issue about
whether:
(a) an asserted writing, recording, or photograph ever existed;
(b) another one produced at the trial or hearing is the original; or
(c) other evidence of content accurately reflects the content.
On the state level, the rules of evidence can differ from one state to another.
Imaging Studies
Imaging studies are pictures of the interior of the object portrayed and are
admissible under the same requirements as photographs and videos.
Competent evidence must be offered to show that the scans and films are
those of the patient, the object, or body part under consideration; that the
images were taken in a recognized manner by a competent technician; and a
competent physician trained to read the images interpreted them. The value of
the images lies in the fact that they identify fractures, foreign objects, and
other patient ailments.
Viewing Patient Injuries
Where an issue regarding personal injuries is involved, the plaintiff may be
permitted to show to the jury the relevant wound or injury. The exhibition is
allowable under the discretion of the court, which considers whether or not the
jury will become biased and prejudiced as a result of the observation of the
plaintiff’s injuries.
The human body is considered the best evidence as to the nature and extent
of the alleged injury/injuries. If there is no controversy about either the nature
or the extent of an injury, presenting such evidence could be considered
prejudicial, and an objection can be made as to its presentation to a jury.
Demonstrations are permitted in some instances to illustrate the extent of
injuries. The resident in Hendricks v. Sanford developed serious bedsores
on her back. The defendant objected to the offer of the plaintiff to display her
back to the jury. The court found that the plaintiff’s injuries, which had healed,
were completely relevant as evidence. Even though the injuries had healed
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and a skin graft had been performed, a declivity of approximately 3.5 inches in
diameter and about the depth of a shallow ashtray was still discernible on the
plaintiff’s back.
Documentary Evidence
Documentary evidence is written information capable of making a truthful
statement (e.g., drug manufacturer inserts, autopsy reports, birth certificates,
and medical records). Documentary evidence must satisfy the jury as to
authenticity, though proof of authenticity is not necessary if the opposing party
accepts its genuineness. In some instances (e.g., wills), witnesses are
necessary. In the case of documentation, the original of a document must be
produced unless it can be demonstrated that the original has been lost or
destroyed, in which case a properly authenticated copy may be substituted.
Medical Records
Preliminary questions that a witness might be asked on entering a medical
record into evidence include the following:
1. Please state your name.
2. Where are you employed?
3. What is your position?
4. What is your official title?
5. Did you receive a subpoena for certain records?
6. Did you bring those records with you?
7. Can you identify these records?
8. Did you retrieve the records yourself?
9. Are these the complete records?
10. Were any records destroyed in the normal course of business? If your
answer is yes, please describe for the jury which records were
destroyed and why they were destroyed.
11. Are these the original records or copies of the originals?
12. How were these records prepared?
13. Are these records maintained under your care, custody, and control?
14. Were these records made in the regular course of business?
15. Was the record made at the time the act, condition, or event occurred
or transpired?
16. Is this record regularly kept or maintained?
Manufacturer’s Drug Inserts
A manufacturer’s drug insert or manual describing the proper use of medical
equipment is generally admissible in court as evidence. In Mueller v.
Mueller, a physician was sued by a patient who charged that she had
suffered a deterioration of bone structure and ultimately a collapsed hip as a
result of the administration of cortisone over an extended period. The jury
decided that the physician’s prolonged use of cortisone was negligent, and the
physician appealed. “The busy doctor has no alternative but to prescribe these
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drugs according to the recommendations of the drug manufacturers. No one
would expect him to stop his practice and conduct tests and experiments so
that he could prescribe the drug solely from his own independent findings on
its usefulness and possible side effects. Every doctor who testified in this trial
admitted to the use of the drug manufacturer’s recommendations as a guide in
prescribing drugs.” The appeals court held that the manufacturer’s
recommendations are not only admissible but also essential in determining a
physician’s possible lack of proper care. “We see no reason for the courts to
hesitate to use a standard so widely and favorably used in the medical
profession.”
In another case, Mulligan v. Lederle Laboratories, the plaintiff, a medical
laboratory technician, brought an action against the drug manufacturer as the
result of the side effects of the drug Varidase. The plaintiff developed several
chronic health problems, including mouth sores, microscopic hematuria, and
red cell cast, indicating kidney disease. The trial court awarded $50,000 in
compensatory damages and $100,000 in punitive damages for the drug
manufacturer’s failure to warn of the side effects of Varidase. On appeal by the
manufacturer, the appeals court held that the products liability action was not
barred by a 3-year statute of limitations contained in an Arkansas products
liability act and that the evidence was sufficient to award punitive damages.
Evidence presented at trial indicated that several side effects were associated
with the drug.
Statutes, Rules, and Regulations
Statutes, rules, and regulations can voice a duty that is owed to a particular
class of persons who are protected by the statute or regulation. For example,
assume a regulation specifies a nurse–patient ratio of no less than one
registered nurse to care for no more than two patients in an ICU. This
regulation is an expression of the duty imposed on the facility to provide
adequate nursing care to patients. Patients are, therefore, a class of people
identified within the regulation who are to have the benefits of the protection to
be gained by having a predetermined minimum standard nurse–patient care
ratio.
Policies and Procedures
The policies and procedures of a healthcare organization established for day-
to-day operations are a form of documentary evidence. If a violation of a
facility’s policy and procedures causes injury to one whom the policy or
procedure is designed to protect, such violation can give rise to evidence for
negligent conduct.
Facebook Entries and Emails
A federal district court judge ruled in favor of the employer in Lineberry v.
Detroit Medical Center et al. The employer was found to have a reasonable
belief that its employee was abusing her Family and Medical Leave Act
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(FMLA) leave when it concluded she was dishonest when she was confronted
with questions about her Facebook postings of vacation pictures taken while
on FMLA leave, and the employer was therefore entitled to terminate the
employee. The Court granted summary judgment to the employer, dismissing
the employee’s suit accusing the hospital of interfering with her FMLA rights
and retaliating against her for taking legally protected leave. The plaintiff had
claimed that she had to use wheelchairs in all airports on her trip to Mexico.
She was reminded that airports have cameras. Upon being shown her
Facebook postings, she admitted that she had lied about the use of
wheelchairs, as she had never used a wheelchair on her Mexico vacation. At
her deposition, she testified:
Q. Is it not true that at the beginning of the [April 19, 2011] meeting, you
told the group that you had used wheelchairs?
A. Yes.
Q. Then later on in the meeting, you admitted lying about that, correct?
A. Yes.
Q. Why did you initially lie to the group about using the wheelchair?
A. Because I had lied previously in an email [the March 7, 2011, email to
Richards] and I wanted to remain consistent.
The plaintiff’s acknowledgment of her behavior during family leave was
sufficient evidence of the facts in this case upon which the defendants “could
reasonably rely to support their decision to terminate Plaintiff. As such,
Defendants are also entitled to summary judgment based on their honest
belief that Plaintiff lied and misused her FMLA leave.”
Hearsay Evidence
Hearsay evidence is based on what another has said or done and is not the
result of the personal knowledge of the witness. Hearsay consists of written
and oral statements. When a witness testifies to the utterance of a statement
made outside court and the statement is offered in court for the truth of the
facts that are contained in the statement, this is hearsay and therefore
objectionable.
The court in Costal Health Services, Inc. v. Rozier held that a written report
by an ombudsman (who did not testify at trial) concerning injuries and
treatment of an 85-year-old patient was inadmissible as evidence. It contained
hearsay accounts of conversations as well as impressions, opinions, and
conclusions regarding the nursing facility’s negligence when a patient
wandered into another patient’s room and was injured by that resident.
However, the court found that the testimony about one patient’s own account
of his violent past, made to the nursing home personnel upon his admission,
was admissible as original evidence, not as proof of the actual prior incidents,
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but to show the defendant’s notice of the possibility of violent behavior on the
part of that patient.
If a statement is offered not as proof of the facts asserted in the statement, but
rather only to show that the statement was made, the statement can come into
evidence. For example, if it is relevant that a conversation took place, the
testimony relating to the conversation may be entered as evidence. The
purpose of that testimony would be to establish that the conversation took
place, not to prove what was said during the course of the conversation. If
testimony is based on personal knowledge, it would be admissible as
evidence.
Because of the ability to challenge hearsay evidence successfully, which rests
on the credibility of the witness as well as on the competency and veracity of
other persons not before the court, it is admitted as evidence in a trial under
very strict rules.
There are many exceptions to the hearsay rule that allow testimony that
ordinarily would not be admitted. Included in the list of exceptions are
admissions made by one of the parties to the action, threats made by a victim,
dying declarations, statements to refresh a witness’s recollection if he or she is
unable to remember the facts known earlier, business records, medical
records, and other official records (e.g., certified copies of birth and death
records). “Where hearsay evidence is admitted without objection, its probative
value is for the jury to determine.” This list of exceptions to hearsay evidence
is by no means all-inclusive, and therefore, both federal and state statutes
should be consulted.
HEARSAY AND LOST CHANCE OF SURVIVAL
Citation: Stroud v. Golson, 741 So. 2d 182 (La. App. 2d Cir. June 16, 1999)
Facts
Dr. Mikey examined Stroud. After viewing X-rays, Mikey told Stroud that she
might have lung cancer and referred her to Dr. Gullatt for follow-up care. A
CT scan was performed at St. Francis Medical Center and Dr. Golson, a
radiologist, interpreted Stroud’s CT scan as negative for lung cancer.
Approximately 1 year later, Stroud was hospitalized at St. Francis for a
cerebral hemorrhage. X-rays and CT scans revealed inoperable cancer in
Stroud’s left lung.
Stroud was discharged from St. Francis and later died as a result of the
cancer. The decedent’s husband and sons filed a suit seeking damages
arising from Golson’s failure to properly interpret Stroud’s CT scan. Before
trial, the plaintiffs settled with Golson and his insurer.
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On February 23, 1998, a trial by jury commenced against the Patients’
Compensation Fund (PCF), which admitted medical negligence but claimed
that Stroud would have died from the fast-acting cancer even if it had been
diagnosed earlier. The jury returned a verdict finding that Stroud lost a less-
than-even chance of survival because of Golson’s negligence.
The defendant argued that the trial judge erred when he overruled the
hearsay objection regarding Mr. Stroud’s testimony concerning his wife’s
reasons for declining treatment after her cancer was diagnosed. The
testimony at issue centered around the following exchange:
Mr. Thomas: Now, did your wife discuss—you—you and your wife discuss
whether or not she should have treatment for her cancer?
Mr. Stroud: Yes, we did.
Mr. Thomas: And were you a part in making a decision with her with why
she did not agree to have treatment?
Mr. Stroud: Yes.
Mr. Thomas: Share with the jury what she said about that.
Mr. Stroud: She, ah,—
Mr. Anzelmo: Your Honor, I object to hearsay.
The Court: I understand. But, I think it—it is hearsay but it’s reliable. I’ll allow
it.
Mr. Thomas: Go ahead.
Mr. Stroud: Ah, I had a—my sister passed away in November ’94 with lung
cancer, and she found out in July of ’94 that she had lung
cancer. So she went and took the radium treatments, and she
weighed 125 pounds and was eating and doing all right until she
started taking the radium treatments, and by the end of the
radium treatments she could hardly get about, and actually she
just laid down and starved herself to death. She weighed 65
pounds when she passed away, and was bedridden all that time.
And the wife felt that it was too far gone in her for any treatments
to do any good, plus what few days she had left she didn’t want
to be like my sister.
Issue
Did the trial judge err when he overruled the hearsay objection regarding
Stroud’s testimony?
Holding
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The appeals court found no abuse of discretion by the trial court.
Reason
Stroud suffered a great deal of mental anguish from the hopeless condition
she faced, knowing that earlier detection was lost because her CT scan was
not properly read. Her decision not to undergo the painful and debilitating
chemotherapy, when the odds were so stacked against her recovery, was
justified. It is a reasonable conclusion that Stroud would have, in all
likelihood, opted for the treatment had the cancer been diagnosed sooner.
Stroud’s testimony regarding statements his wife made provided statements
of her then-existing state of mind. The testimony showed the motive behind
Stroud’s decision not to receive treatment, namely, her belief that the
treatments would not be effective, as well as her desire to avoid the severe
pain and discomfort that can accompany chemotherapy.
A police officer’s testimony that he overheard a drug dealer tell an informant,
who was wearing a concealed transmitter, that he could obtain drugs for the
informant from a pharmacist friend was properly admitted in a disciplinary
proceeding in Brown v. Idaho State Board of Pharmacy. The testimony was
presented before the Idaho State Board of Pharmacy for proving a dealer’s
state of mind and explaining his subsequent visit to the pharmacy. The
testimony was not subject to hearsay objection.
Medical Books as Hearsay Evidence
Medical books are considered hearsay because the authors are not generally
available for cross-examination. Although medical books are not admissible as
evidence, a physician may testify as to how he or she formed an opinion and
what part textbooks played in forming that opinion. During cross-examination,
medical experts may be asked to comment on statements from medical books
that contradict their testimony.
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▸ DEFENSES AGAINST PLAINTIFF’S ALLEGATIONS
When a plaintiff’s case has been established, the defendant may put forward a
defense against the claim for damages. The defendant’s case is presented to
discredit the plaintiff’s cause of action and prevent recovery of damages. This
section reviews various defenses available to defendants in a negligence suit
(FIGURE 8-1) that may relieve a defendant from liability.
FIGURE 8-1 Defenses against a plaintiff’s claims.
Ignorance of Fact and Unintentional Wrongs
Ignorance of the law excuses no man; not that all men know the law,
but because it is an excuse every man will plead, and no man can tell
how to confute him.
—John Selden (1584–1654)
Ignorance of the law is not a legal defense in a lawsuit; otherwise, the plaintiff
would be rewarded by pleading ignorance. Arguing that a negligent act is
unintentional is not a defense. If such a defense were acceptable, all
defendants would use it.
Assumption of the Risk
Assumption of the risk is knowing that a danger exists and voluntarily
accepting the risk by exposing oneself to it, aware that harm might occur.
Assumption of the risk may be implicitly assumed, as in alcohol consumption,
or expressly assumed, as in relation to warnings found on cigarette packaging.
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This defense provides that the plaintiff expressly has given consent in
advance, relieving the defendant of an obligation of conduct toward the plaintiff
and taking the chances of injury from a known risk arising from the defendant’s
conduct. For example, a provider who agrees to care for a patient with a
communicable disease and then contracts the disease would not be entitled to
recover from the patient for damages suffered. In taking the job, the individual
agreed to assume the risk of infection, thereby releasing the patient from all
legal obligations.
The following two requirements must be established in order for a defendant to
be successful in an assumption of the risk defense:
1. The plaintiff must know and understand the risk that is being incurred.
2. The choice to incur the risk must be free and voluntary.
The patient in Faile v. Bycura was awarded $75,000 in damages on her
allegations that a podiatrist used inappropriate techniques during an
unsuccessful attempt to treat her heel spurs. On appeal, it was held that the
trial court erred in striking the podiatrist’s defense of assumption of the risk.
Evidence established that the patient signed consent forms that indicated the
risks of treatment as well as alternative treatment modalities.
Prior to both surgeries, Faile signed a consent form in which she
acknowledged that the surgery would probably result in stiff toes. She
further acknowledged that the surgery may not work and the heel spurs
may have to be surgically removed at a later date. These consent forms
were written out in Faile’s own handwriting, and Faile testified one of
Bycura’s employees had discussed the risks with her. Faile also signed a
form in which she acknowledged there were various methods for treating
heel pain, but she was electing these treatments.
The appeals court reversed the judgment of the trial and the case was
remanded for a new trial.
Contributory Negligence
Contributory negligence occurs when a person does not exercise reasonable
care for his or her own safety. As a general proposition, if a person has
knowledge of a dangerous situation and disregards the danger, then that
person is contributorily negligent. Actual knowledge of the danger of injury is
not necessary for a person to be contributorily negligent. It is sufficient if a
reasonable person should have been aware of the possibility of the danger.
The rationale for contributory negligence is based on the principle that all
persons must be both careful and responsible for their acts. A plaintiff is
required to conform to the broad standard of conduct of the reasonable
person. The plaintiff’s negligence will be determined and governed by the
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same tests and rules as the negligence of the defendant. A person incurs the
risk of injury if he or she knows of a danger, understands the risks involved,
and voluntarily exposes him- or herself to such danger.
In some jurisdictions, contributory negligence, no matter how slight, is
sufficient to defeat a plaintiff’s claim. Generally, the defense of contributory
negligence has been recognized in a medical malpractice action when the
patient has failed to follow a physician’s instructions; refuses or neglects
prescribed treatment; or intentionally provides erroneous, incomplete, or
misleading information that leads to the patient’s injury.
Contributory negligence is established when: (1) the plaintiff’s conduct falls
below the required standard of personal care, and (2) there is a causal
connection between the plaintiff’s careless conduct and the plaintiff’s injury.
Therefore, the defendant contends that some, if not all, liability is attributable
to the plaintiff’s own actions. To establish a defense of contributory
negligence, the defendant must show that the plaintiff’s negligence was an
active and efficient contributing cause of the injury.
This was not the case in Bird v. Pritchard, in which the plaintiff, on July 3,
1970, slipped and fell, cutting her right hand on a mayonnaise jar and thus
injuring the ulnar nerve. She was taken to Hocking Valley Memorial Hospital
where she requested the services of Dr. Najm, a board-certified general
surgeon. However, he was not available. The defendant, an osteopathic
surgeon, was available, and he treated the patient’s wound. The patient
complained that the fourth and fifth fingers of her right hand were numb. The
defendant cleaned the wound and advised the patient to see him on Monday,
July 7. The patient did not return to the osteopathic surgeon, but went to see
Najm that same Monday. A suit was filed, the court of common pleas rendered
a judgment for the defendant, and the plaintiff appealed. The court of appeals
held that the patient could not be found to have been contributorily negligent or
to have assumed the risk. By the time of her scheduled visit, it was impossible
to perform primary or secondary repair of the injured nerves that had not been
treated on the initial visit when she had first complained of numbness. For
contributory negligence to defeat the claim of the plaintiff, there must not only
be negligent conduct by the plaintiff, but also a direct and proximate causal
relationship between the negligent act and the injury the plaintiff received.
The Delaware Supreme Court affirmed a lower court’s dismissal of a wrongful
death action against a medical center’s emergency department personnel in
Rochester v. Katalan. The decedent, Rochester, and a friend had been
brought to the emergency department at approximately 6:30 PM under the
custody of two police officers. Rochester and his friend, claiming to be heroin
addicts suffering withdrawal symptoms, requested some form of medication.
Rochester stated that he had a habit requiring four to five bags of heroin a
day. His actions were symptomatic of withdrawal. He and his friend were loud,
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abusive, and uncooperative. Rochester complained of abdominal pains, his
eyes appeared glassy, and his body was shaking, among other symptoms that
he exhibited. The physician on duty in the emergency department asked
whether Rochester had ever participated in a methadone clinic program.
Rochester indicated that he had but that he had dropped out of it because he
found a new supply source for heroin. The physician then ordered the
administration of 40 mg of methadone. Rochester began beating his head
against a wall, claiming that he was still sick and needed more methadone.
The plea was granted, and the physician ordered a second dose of 40 mg of
methadone. After eventually calming down, Rochester was taken to a cell by
police officers. The following morning, it was impossible to awaken him, and
he was later pronounced dead. It was discovered that he had never been an
addict or in a methadone program; rather, the previous night he had been
drinking beer and taking Librium. He had not told this to hospital authorities.
Rochester’s estate sued the physician, and the trial court dismissed the suit.
The appellate court affirmed, saying that by Rochester’s failure to provide the
physician accurate information, he had contributed to his own death. On
appeal, the plaintiff argued that the physician and staff could have done more
to determine the truth of Rochester’s assertions that he was a drug addict. The
Delaware Supreme Court held that it already had assumed negligence in that
respect. Rochester contributed to his own death by failing to provide a true
account of the facts to the emergency department staff. He was guilty of
negligent conduct, more accurately “willful” or “intentional” conduct, which was
the proximate cause of his death, resulting from multiple drug intoxication. His
estate was barred from recovering any monetary damages.
The patient, Cammatte, in Jenkins v. Bogalusa Community Medical Center,
was admitted to Bogalusa Community Medical Center on September 11 for
the treatment of a severe gouty arthritic condition. He had been advised not to
get out of bed without first ringing for assistance. On the morning of
September 16, he got out of bed without ringing for assistance and went to a
bathroom across the hall. As he returned to his room, he fell and fractured his
hip. Cammatte was transferred to Touro Infirmary in New Orleans, where he
underwent hip surgery and died on October 5, during recuperation, as a result
of an apparent pulmonary embolism. The trial court entered judgment for the
defendants, and the plaintiffs appealed. The appeals court found that the
patient was in full possession of his faculties at the time he fell and fractured
his hip. The accident was the result of the patient’s knowing failure to follow
instructions not to get out of bed without ringing for assistance. The injury in
this case was not the result of any breach of the institution’s duty to exercise
due care.
In another case, the plaintiff in Quinones v. Public Administrator sought to
recover damages for the alleged negligence of the defendant’s physicians for
their failure to treat a fractured ankle. The plaintiff claimed that there was a
nonunion of the fracture and that he was advised to put weight on his leg. As a
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result of this advice, the plaintiff claimed that there was an exacerbation of the
original injury requiring two operative procedures, which resulted in the fusion
of his left ankle. The defendant claimed that if there was any subsequent
injury, it was because of the failure of the plaintiff to return for care. The New
York Supreme Court entered a judgment in favor of the defendant hospital,
and the plaintiff appealed. The New York Supreme Court, Appellate Division,
held that a patient’s failure to follow instructions does not defeat an action for
malpractice where the alleged improper professional treatment occurred
before the patient’s own negligence. Damages would be reduced to the
degree that the plaintiff’s negligence increased the extent of the injury.
Comparative Negligence
A defense of comparative negligence provides that the degree of negligence
or carelessness of each party to a lawsuit must be established by the finder of
fact and that each party then is responsible for his or her proportional share of
any damages awarded. For example, when a plaintiff suffers injuries of
$10,000 from an accident and the plaintiff is found 20% negligent and the
defendant 80% negligent, the defendant would be required to pay $8,000 to
the plaintiff. Thus, with comparative negligence, the plaintiff can collect for
80% of the injuries, whereas an application of contributory negligence would
deprive the plaintiff of any monetary judgment. This doctrine relieves the
plaintiff from the hardship of losing an entire claim when a defendant has been
successful in establishing that the plaintiff contributed to his or her own
injuries. A defense that provides that the plaintiff will forfeit an entire claim if he
or she has been contributorily negligent is considered too harsh a result in
jurisdictions that recognize comparative negligence.
Good Samaritan Statutes
Various states have enacted Good Samaritan statutes, which relieve
physicians, nurses, dentists, and other healthcare professionals and, in some
instances, laypersons from liability in certain emergency situations. Good
Samaritan legislation encourages healthcare professionals to render
assistance at the scene of emergencies. The language that grants immunity
also supports the conclusion that the physician, nurse, or layperson covered
by the act will be protected from liability for ordinary negligence in rendering
assistance in an emergency.
Under most statutes, immunity is granted only during an emergency or when
rendering emergency care. The concept of emergency usually refers to a
combination of unforeseen circumstances that require spontaneous action to
avoid impending danger. Some states have sought to be more precise
regarding what constitutes an emergency or accident. According to the Alaska
statute 09.65.090(a), the emergency circumstances must suggest that the
giving of aid is the only alternative to death or serious bodily injury.
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Apparently, this provision was inserted to emphasize that the actions of a
Good Samaritan must be voluntary. To be legally immune under the Good
Samaritan laws, a physician or nurse must render help voluntarily and without
expectation of later pay.
Emergency Assistance
A physician not on call who responds to an emergency call by a surgeon on
call to assist in the completion of a tubal ligation most likely will be immune
from a negligence claim under the state’s Good Samaritan law if he or she had
a good faith belief that the patient was in a life-threatening situation. Such was
the case in Pemberton v. Dharmani, where the court of appeals held that the
Michigan Good Samaritan statute merely requires a good faith belief by
healthcare personnel that they are attending a life-threatening emergency in
order to be cloaked with the immunity provided by the statute, regardless of
whether a life-threatening emergency actually exists. To construe the statute
otherwise would controvert the purpose of the statute and render it
meaningless. Healthcare personnel would be discouraged from giving
treatment in emergency situations if an actual life-threatening situation were
required to exist before they would be cloaked with immunity. Treatment may
even be delayed in a given case, worsening the condition of the patient by
waiting until the patient is in an obviously life-threatening situation before
rendering treatment.
Borrowed Servant Doctrine
The borrowed servant doctrine is a special application of the doctrine of
respondeat superior and applies when an employer lends an employee to
another for a particular employment. Although an employee remains the
servant of the employer, under the borrowed servant doctrine, the employer is
not liable for injury negligently caused by the servant while in the special
service of another. For example, in certain situations, a nurse employed by a
hospital may be considered the employee of the physician. In these situations,
the physician is the special or temporary employer and is liable for the
negligence of the nurse. To determine whether a physician is liable for the
negligence of a nurse, it must be established that the physician had the right to
control and direct the nurse at the time of the negligent act. If the physician is
found to be in exclusive control of the nurse at the time of the alleged
malpractice, the nurse is deemed to be the physician’s temporary special
employee and the hospital is not generally considered liable for the nurse’s
negligent acts.
Hospital Responsible for Resident’s Negligence
The hospital in Brickner v. Osteopathic Hospital was held vicariously liable
for a surgical resident’s failure to diagnose testicular cancer during exploratory
surgery performed under the supervision of a staff physician. The hospital was
not insulated from liability under the borrowed servant doctrine even though
the supervising surgeon had authority over the resident during the operation.
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The hospital never relinquished control over the resident, who was required
under the hospital’s training program to assist in diagnosis and who could
have taken a biopsy without express instructions of the operating surgeon.
Liability was not precluded because of the hospital’s lack of actual control over
the resident’s medical decision not to perform a biopsy. The resident was
performing a service for which he had been employed.
GOOD SAMARITAN STATUTE: PREEXISTING DUTY TO
CARE
Citation: Deal v. Kearney, 851 P.2d 1353 (Alaska 1993)
Facts
The plaintiff, Kearney, suffered a life-threatening injury and was taken by
ambulance to the emergency department of Kodiak Island Hospital (KIH).
The on-call emergency department physician, a family practitioner,
examined Kearney. It was determined that a surgical consultation was
necessary and Deal, a surgeon with staff privileges at the hospital, was
called. After ordering certain tests, Deal was of the opinion that Kearney
could not survive a transfer to Anchorage. Deal then performed emergency
surgery that lasted for over 9 hours, ending the following morning.
The plaintiff was eventually transferred to Anchorage. His condition
worsened, and he suffered loss of circulation and tissue death in both legs.
The plaintiff alleged that KIH was negligent in failing to properly evacuate
him to Anchorage. Kearney reached a settlement totaling $510,000. He also
brought an action against Deal for negligent acts. Deal moved for summary
judgment, claiming to be immune from suit under the Good Samaritan
statute.
The trial court denied Deal’s motion for summary judgment, ruling that the
Good Samaritan statute was not applicable to Deal because he was acting
under a preexisting duty to render emergency care to Kearney. Deal
petitioned for review, and his petition was granted.
The superior court held that the immunity provided by the Good Samaritan
statute is unavailable to physicians with a preexisting duty to respond to
emergency situations. The court concluded that Deal was under a
preexisting duty in the instant case by virtue of his contract with KIH, the
duty being part of the consideration that Deal gave to KIH in exchange for
staff privileges at the hospital. The court further found that the Good
Samaritan statute did not apply to Deal in any event, because the actions
allegedly constituting malpractice occurred during the follow-up care and
treatment given to Kearney after surgery. By then, the court reasoned, Deal
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had become Kearney’s treating physician and was no longer responding to
an emergency situation. Deal appealed to the Alaska Supreme Court.
Issue
Does the Good Samaritan statute extend immunity to physicians who have a
preexisting duty to render emergency care?
Holding
The Alaska Supreme Court held that the Good Samaritan statute does not
extend immunity to physicians who have preexisting duty to render
emergency care.
Reason
Alaska Statute 09.65.090(a) states:
A person at a hospital or any other location who renders emergency care
or emergency counseling to an injured, ill, or emotionally distraught
person who reasonably appears to be “in immediate need of emergency
aid in order to avoid serious harm or death is not liable for civil damages
as a result of an act or omission in rendering emergency aid.”
The legislature clearly intended this provision to encourage healthcare
providers, including medical professionals, to administer emergency medical
care, whether in a hospital or not, to persons who are not their patients, by
immunizing them from civil liability. The clear inference of this
recommendation is that the statute would not cover those with a preexisting
duty to care.
Physician Not Liable for Technician’s Negligence
Oberzan brought a medical malpractice action against a hospital radiologist,
Dr. Smith, for injuries allegedly incurred because of an X-ray technician’s
negligence in performing a barium enema. The plaintiff alleged that either
Dr. Smith or the X-ray technician, Davis, perforated his rectum during a barium
enema procedure. Davis inserted the enema tip into the rectum of the plaintiff
for the barium enema before Dr. Smith entered the X-ray room for the
procedure. After Dr. Smith entered the room, the examination began.
Immediately after Davis began injecting the barium, she noticed bleeding at
the tip of the rectum.
Oberzan claimed the physician was vicariously liable for the employee’s
negligent conduct. The Kansas Supreme Court held that the respondeat
superior doctrine did not apply to the relationship between the technician
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employed by the hospital and the radiologist so as to impose vicarious liability
on the radiologist.
Davis was not an employee of Dr. Smith. She was not under his direct
supervision and control at the time the injury occurred. Dr. Smith did not select
Davis to perform the insertion of the enema tip; she was assigned by the
hospital. A master–servant relationship was not established because Dr. Smith
was not exercising personal control or supervision over Davis.
Oberzan argued that Kansas law K.A.R. 28-34-86(a) provides that “the
radiology department and all patient services rendered therein shall be under
the supervision of a designated medical staff physician; wherever possible,
this physician shall be attending or consulting radiologist.” The plaintiff claimed
this imposes a duty on radiologists to supervise patient services rendered in a
hospital’s radiology department. The plaintiff, however, failed to show that any
of the statute’s subsections require that the preparation of a patient for a
barium enema be performed under the direct supervision of a physician. The
purpose of K.A.R. 28-34-12(c) “is to establish an administrative head for the
radiology department.” Oberzan cited no authority in support of his position
that the Kansas statute created a legal duty for a designated medical staff
physician to personally control and supervise all activities that occur in a
radiology department. Such an interpretation of the statute would create
physician liability extending far beyond the intent of the regulation.
Captain of the Ship Doctrine
In the context of the operating room, the application of the borrowed servant
doctrine generally is referred to as the captain of the ship doctrine. Historically,
under this doctrine, the surgeon was viewed as being the one in command in
the operating room. The rationale for this concept was provided in the
Minnesota case of St. Paul-Mercury Indemnity Co. v. St. Joseph Hospital,
when the court stated:
[t]he desirability of the rule is obvious. The patient is completely at the
mercy of the surgeon and relies upon him to see that all the acts relative to
the operation are performed in a careful manner. It is the surgeon’s duty to
guard against any and all avoidable acts that may result in injury to his
patient. In the operating room, the surgeon must be master. He cannot
tolerate any other voice in the control of his assistants. In the case at bar,
the evidence is clear that the doctor had exclusive control over the acts in
question, and therefore the hospital cannot be said to have been a “joint
master” or “comaster,” even though the nurses were in its general employ
and paid by it.
In Krane v. Saint Anthony Hospital Systems, the factual question that had to
be determined was whether, at the time of the alleged negligent act, the
operating surgeon had assumed control of a surgical nurse. If so, the
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responsibility of the surgeon supersedes that of the hospital. It was
uncontradicted that the alleged negligent act of the surgical nurse took place
over 2.5 hours into surgery, and there could be no factual dispute that the
surgeon had assumed control over the nurse.
Several courts have developed a distinction between a nurse’s clerical or
administrative acts and those involving professional skill and judgment, which
are considered medical acts. Some courts use this distinction in allocating
liability for the acts of a nurse to either the surgeon or the hospital. If the act is
characterized as administrative or clerical, it is the hospital’s responsibility; if
the act is considered to be medical, it is the surgeon’s responsibility. This rule
was followed in the Minnesota case of Swigerd v. City of Ortonville, in which
the court found that the hospital is liable as an employer for the negligence of
its nurses in performing acts that are basically administrative. Administrative
acts, although constituting a component of a patient’s prescribed medical
treatment, do not require the application of specialized procedures and
techniques or the understanding of a skilled physician or surgeon.
Today’s courts recognize that surgeons do not always have the right to control
all persons within the operating room. An assignment of liability based on the
theory of who had actual control over the patient more realistically reflects the
actual relationship that exists in a modern operating room. For example,
summary dismissal in Thomas v. Raleigh was properly ordered for those
portions of a patient’s medical malpractice action that sought to hold a surgeon
vicariously liable for throat injuries suffered by his patient because of the
negligent manner in which an endotracheal tube was inserted during the
administration of anesthesia. The patient’s allegations that the surgeon
exercised control over the administration of anesthesia were rebutted by
evidence to the contrary. Liability of the surgeon could not be premised on the
captain of the ship doctrine because that doctrine would not be recognized in
West Virginia, where the surgery took place. Deposition testimony made it
clear that Dr. Isaac had nothing to do with the anesthesia procedure. “In the
present case Thomas presented no evidence to dispute the finding that Dr.
Isaac had no control over the anesthesia procedure, and therefore the trial
court’s ruling on this matter was correct.”
Statute of Limitations
The statute of limitations refers to legislatively imposed time constraints that
restrict the period after the occurrence of an injury during which a legal action
must be commenced. Should a cause of action be initiated later than the
period prescribed, the case cannot proceed. Many technical rules are
associated with statutes of limitations. Statutes in each state specify that
malpractice suits and other personal injury suits must be brought within fixed
periods of time. An injured person who is a minor or is otherwise under a legal
disability may, in many states, extend the period within which an action for
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injury may be filed. Computation of the period when the statute begins to run
in a particular state may be based on any one or more of the following factors:
The date that the physician terminated treatment
The time of the wrongful act
The time when the patient should have reasonably discovered the
injury
The date that the injury is discovered
The date when the contract between the patient and the physician
ended
The running of the statute will not begin if fraud (the deliberate concealment
from a patient of facts that might present a cause of action for damages) is
involved. The cause of action begins at the time fraud is discovered.
The statute of limitations does not generally begin to run in those cases where
a patient is unaware that an act of malpractice has occurred. Such is the case
when foreign objects are left in a patient during surgery. A New Hampshire
patient in Shillady v. Elliot Community Hospital sued the hospital for
negligence in treatment that was administered 31 years earlier. A needle had
been left in the patient’s spine after a spinal tap in 1940. In 1970, an X-ray
showed the needle. The patient had suffered severe pain immediately after the
spinal tap, which had decreased over the intervening years to about three
“spells” per year. The court held that the 6-year statute of limitations does not
begin “until the patient learns or in the exercise of reasonable care and
diligence should have learned of its presence.” Therefore, the defendant’s
motion to dismiss the case on the grounds that the statute of limitations had
run out was not granted.
Sovereign Immunity
Sovereign immunity is a legal doctrine by which federal and state governments
historically have been immune from liability for harm suffered from the tortious
conduct of government employees. For the most part, both federal and state
governments have abolished sovereign immunity. Congress enacted the
Federal Tort Claims Act (FTCA) of 1948 to provide redress for those who have
been negligently injured by employees of the federal government acting within
their scope of employment.
FTCA and Veterans Hospital
In an action under the FTCA, the plaintiff was permitted to sue the Veterans
Administration Hospital of Memphis, Tennessee, in a federal court for injuries
sustained by an 83-year-old patient found lying in a hallway of the hospital.
The patient suffered severe head injuries that required surgery. Damages in
the amount of $80,000 were awarded to the plaintiff. The court held that the
evidence was sufficient to raise a duty on the part of government employees
attending the patient to use reasonable care to protect him from getting out of
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bed and injuring himself. This duty was breached, and the patient was injured.
The proximate cause of the patient’s injuries was related to the hospital’s
failure to put up the patient’s bed rails and its failure to remind him to call a
nurse if he needed help.
FTCA and Failure to Refer
Action was brought on behalf of a minor in Steele v. United States who
received treatment at a U.S. Army hospital and suffered injury because of the
optometrist’s failure to refer the child to an ophthalmologist for examination.
The U.S. district court held that it was probable that an ophthalmologist would
have diagnosed the child’s problem and prevented the loss of his right eye.
Recovery was permitted against the United States under the FTCA.
State Immunity Laws
The various states provide that government employees can be held liable for
their tortious acts. The Texas Tort Claims Act, for example, allows an
individual to file a private tort suit against a government entity.
STATUTE OF LIMITATIONS NOT APPLICABLE
Citation: J.B. v. Sacred Heart Hosp. of Pensacola, 635 So. 2d 945 (Fla.
1994)
Facts
The facts of this case reveal that the hospital on or about April 17, 1989,
was requested by its medical staff to arrange transportation for the patient,
diagnosed with acquired immunodeficiency syndrome (AIDS), to another
treatment facility in Alabama. The social services department, unable to
arrange ambulance transport, asked the patient’s brother to provide the
transportation. J.B., having visited his brother at the hospital when he was
first admitted, was under the impression that his brother’s diagnosis was
Lyme disease. He had not been notified that there was a change in
diagnosis. The patient was released to his brother from the hospital with
excessive fever and a heparin lock in his arm. During the trip, J.B.’s brother
began to thrash about and accidentally dislodged the dressing to his heparin
lock, causing J.B. to reach over while driving in an attempt to prevent the
lock from coming out of his brother’s arm. In doing so, J.B. came in contact
with fluid around the lock site. J.B.’s hand had multiple nicks and cuts as a
result of a recent fishing trip. [Id. at 947]
The complaint, which was filed after the 2-year statute of limitation had
tolled, alleged that the hospital was negligent in arranging for J.B. to
transport his brother in that it knew of the patient’s condition, the level of
care that would be required in transporting him, and the risk involved. J.B.
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alleged that because he contracted the AIDS virus, his wife was exposed to
it through him and his children have suffered a loss of relationship with him.
The Florida District Court ruled that J.B.’s complaint stated a claim for
medical malpractice and was thus subject to the pre-suit notice and
screening procedures set out in Florida statutes. Because J.B. did not follow
those procedures, the court dismissed the complaint. On appeal, the Florida
Circuit Court declined to rule on J.B.’s claim, concluding that the issues were
appropriate for resolution by the Florida Supreme Court.
Issue
Was the claim of the patient’s brother a claim for medical malpractice and
therefore subject to a 2-year statute of limitations?
Holding
The Florida Supreme Court answered that the claim was not a claim for
medical malpractice for purposes of the 2-year statute of limitations or pre-
suit notice and screening requirements.
Reason
Florida statutes set a 2-year limitation period for medical malpractice
actions. J.B.’s injury arose solely through the hospital’s use of him as a
transporter. Accordingly, this suit is not a medical malpractice action, and
the 2-year statute of limitations is inapplicable. According to the allegations
in J.B.’s complaint, the hospital was negligent in using J.B. as a transporter.
The complaint does not allege that the hospital was negligent in any way in
the rendering of, or the failure to render, medical care or services to J.B.
WHAT SURGEONS LEAVE BEHIND
More than a dozen times a day, doctors sew up patients with sponges and
other surgical objects mistakenly left inside. It’s a deadly, yet easily
avoidable phenomenon.
• • •
The consequences are enormous. Many patients carrying surgical sponges
suffer for months or years before anyone determines the cause of the
searing pain, digestive dysfunction and other typical ills.
—Peter Eisler, USA Today, March 8–10, 2013
403

The Texas Tort Claims Act (“The Act”) is a set of statutes that determine
when a governmental entity may be liable for tortious conduct under state
law. Prior to the adoption of the Act, individuals could not recover damages
from state or local governmental units for injuries resulting from the actions
of a government employee or officer in the performance of a governmental
function.
The Mississippi Supreme Court, as demonstrated in the case below,
determined there was no qualified immunity for public hospital employees
making treatment decisions.
NURSE’S NEGLIGENCE: IMMUNITY DENIED
Citation: Sullivan v. Sumrall by Ritchey, 618 So. 2d 1274 (Miss. 1993)
Facts
In April 26, 1988, the patient was admitted to the hospital suffering from a
severe headache. Her physician ordered a CT scan for the following
morning and prescribed Demerol and Dramamine to alleviate pain. Referring
to the patient’s medical chart, the nurse stated in her deposition that the
patient received injections of Demerol and Dramamine at 6:45 PM and
10:00 PM on April 26. The nurse checked on the patient at 11:00 PM. The
patient’s temperature and blood pressure were taken at midnight. Her blood
pressure was recorded at 90/60, down from 160/80 at 8:00 PM. At 12:25
AM, 2 hours and 25 minutes after her last medication, the nurse
administered another injection of Demerol and Dramamine because the
patient was still complaining of pain. Although hospital rules require
consultation with a patient’s admitting physician when there is a question
regarding the administration of medication, the nurse stated that she did not
call the physician before administering another injection.
At 4:00 AM, when the nurse made an hourly check of the patient, she
discovered that the patient was not breathing. She called a Code 99, which
was an emergency signal that alerted designated staff to come to the
assistance of the patient. In this case, an emergency department physician
responded and revived the patient. The patient was diagnosed as having
suffered “respiratory arrest, with what appears to be hypoxic brain injury.”
CT scans revealed no bleeding, but other tests revealed a grossly abnormal
electroencephalogram (EEG). The patient was transferred to a nursing
facility where she remained in a coma at the time of trial.
The patient’s daughter and husband filed a complaint against the hospital,
alleging that the hospital had been negligent in monitoring and medicating
the patient, in failing to notify a physician when her vital signs became
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irregular, in failing to properly assess her condition and intervene, and in
failing to exercise reasonable care. Later, the complaint was amended to
include the nurse.
The defendant nurse filed a motion for summary judgment. She asserted
that, as a matter of law, she was shielded from liability under the qualified
immunity afforded public officials. The circuit court denied the motion, and
the nurse appealed.
Issue
Is a nurse employed by a county hospital shielded by public official qualified
immunity from a medical negligence action brought against her individually?
Holding
The Mississippi Supreme Court affirmed the decision of the circuit court
denying the nurse’s motion for summary judgment and remanded to the
circuit court for further proceedings.
Reason
There is no qualified immunity for any public hospital employees making
treatment decisions. Discretion exercised by medical personnel in making
treatment decisions is not the sort of individual judgment sought to protect
by the qualified immunity bestowed upon public officials.
Miss. Code Ann. § 41-13-11 expressly provides for the acquisition of liability
insurance by boards and owners of community hospitals and waives
immunity to the extent insurance is available to satisfy any judgment
rendered. It is undisputed that Jones County Community Hospital carried
such a policy. Thus, the hospital itself waived immunity to the extent of its
liability coverage. The record is silent, however, as to whether Jones County
Community Hospital also carried a liability policy for the benefit of its
employees.
Intervening Cause
Intervening cause arises when the act of a third party, independent of the
defendant’s original negligent conduct, is the proximate cause of a patient’s
injury. If the negligent act of a third party is unforeseeable as a normal and
probable consequence of the defendant’s negligence, then the third party’s
negligence supersedes that of the defendant and relieves the defendant of
liability. For example, in DePesa v. Westchester Square Medical Center, a
49-year-old woman experiencing severe pain in her abdomen entered the
emergency department at Westchester Square Medical Center (WSMC).
There, she was prescribed Mylanta and sent home with the advice that she
should contact her personal physician if her condition worsened. She took the
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Mylanta, but her condition continued to deteriorate, and after 20 more days,
she went to the emergency department at a second hospital. She was
admitted and was operated on for a perforated bowel and peritonitis. Although
the evidence indicated that the operation itself was successful, she died at the
hospital on May 25. The autopsy report indicated the presence of yellow fluid
in the pleural cavity and peritoneal cavity and the cause of the death as status
post-bowel resection, bronchopneumonia, and congestive heart failure.
The appellate court found that the trial court should have provided an
instruction directing the jury to decide whether the postoperative care of the
decedent by the second hospital, despite WSMC’s negligence in
misdiagnosing the patient’s condition, was the proximate and superseding
cause of death. WSMC’s expert testified, based on the medical evidence, that
while the decedent was recovering from surgery, employees at the second
hospital administered almost double the amount of fluids that the decedent
could output, resulting in congestive heart failure and her ultimate demise.
WSMC’s theory at trial was that the perforation of the bowel occurred at the
second hospital, where staff allegedly administered substantially more fluid to
the patient than she could excrete, that these causes of death were
independent of WSMC’s own negligence in failing to detect bowel conditions,
and that such intervening cause would not have been foreseeable by a
reasonably prudent person.
Since plaintiff’s expert’s opinion presented an issue of fact as to whether
fluid overload in decedent’s system was a cause of her death, there is a
triable issue as to whether the treatment rendered by nonparty Jacobi
Hospital was an intervening cause, superseding, as a matter of law, any
liability of defendant arising from defendant’s emergency room treatment
20 days earlier.
We have considered plaintiff’s contentions for affirmative relief and find
such relief to be unwarranted under the circumstances.
Cause of Injury by Sterilized Needle Not Foreseeable
In Cohran v. Harper, a patient sued a physician, charging him with
malpractice for an alleged staphylococcal infection that she received from a
hypodermic needle used by the physician’s nurse. The nurse gave the patient
an injection that resulted in osteomyelitis. The grounds of negligence included
an allegation that the physician failed to properly sterilize the hypodermic
needle that was used to administer penicillin. The evidence showed, without
dispute, that a prepackaged sterilized needle and syringe were used in
accordance with proper and accepted medical practice. The physician was not
liable. There was inadequate proof that either the physician or his nurse was
negligent. The court found that even if there was evidence that the needle was
contaminated and that the patient’s ailment was caused thereby, there was no
evidence that the physician, his nurse, or anyone in his office knew, or by the
exercise of ordinary care could have discovered, that the prepackaged needle
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and syringe were contaminated. The defense of intervening cause would have
been an adequate defense against recovery of damages if it had been
established that the needle was contaminated when packaged.
407

▸ CLOSING STATEMENTS
After completion of the plaintiff’s case and the defendant’s defense, the judge
calls for closing statements. The defense proceeds first, followed by the
plaintiff. Closing statements provide attorneys with an opportunity to
summarize for the jury and the court what they have proven. They may point
out faults in their opponent’s case and emphasize points they want the jury to
remember.
The court will grant a motion for a directed verdict if (1) there is no question of
fact to be decided by the jury, or (2) the evidence presented failed to establish
a legal basis for a verdict favoring the plaintiff. “In civil proceedings, either
party may receive a directed verdict in its favor if the opposing party fails to
present a prima facie case, or fails to present a necessary defense.”59
408

▸ JUDGE’S CHARGE TO THE JURY
After the attorneys’ summations, the court charges the jury before the jurors
recess to deliberate. Because the jury determines issues of fact, it is
necessary for the court to instruct the jury with regard to applicable law. This is
done by means of a charge. The judge’s charge describes the responsibility of
the jury, the law applicable to the case heard by the jury, and advises the jury
of the alternatives available to it. The following quote summarizes some
important points in the judge’s instruction to the jury.
The judge will instruct the jury in each separate case as to the law of that
case. For example, in each criminal case, the judge will tell the jury, among
other things, that a defendant charged with a crime is presumed to be
innocent and the burden of proving his guilt beyond a reasonable doubt is
upon the Government. Jurors must follow only the instructions of law given
to them by the trial judge in each particular case.
The trial judge’s charge to the jurors in Estes Health Care Centers v.
Bannerman, in which a nursing facility resident died after transfer to a
hospital after suffering burns in a bath, included:
The complaint alleges the defendant Jackson Hospital undertook to
provide hospital and nursing care to the deceased, and that the defendant
negligently failed to provide proper hospital and nursing care to the
plaintiff’s intestate. . . .
The defendants in response to these allegations . . . have each separately
entered pleas of the general issue or general denial. Under the law, a plea
of the general issue has the effect of placing the burden of proof on the
plaintiffs to reasonably satisfy you from the evidence, the truth of those
things claimed by them in the bill of the complaint. The defendants carry no
burden of proof. . . .
As to the defendant Jackson Hospital, the duty arises in that in rendering
services to a patient, a hospital must use that degree of care, skill, and
diligence used by hospitals generally in the community under similar
circumstances. . . .
Negligence is not actionable unless the negligence is the proximate cause
of the injury. The law defines proximate cause as that cause which is the
natural and probable sequence of events and without the intervention of
any new or independent cause, produces the injury, and without which
such injury would not have occurred. For an act to constitute actionable
negligence, there must not only be some causal connection between the
negligent act complained of and the injury suffered, but connection must be
by natural and unbroken sequence, without intervening sufficient causes,
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so that but for the negligence of the defendant, the injury would not have
occurred. . . .
If one is guilty of negligence, which concurs or combines with the
negligence of another, and the two combine to produce injury, each
negligent person is liable for the resulting injury. And the negligence of
each will be deemed the proximate cause of the injury. Concurrent causes
may be defined as two or more causes which run together and act
contemporaneously to produce a given result or to inflict an injury. This
does not mean that the causes of the acts producing the injury must
necessarily occur simultaneously, but they must be active simultaneously
to efficiently and proximately produce a result. . . .
In an action against two or more defendants for injury allegedly caused by
combined or concurring negligence of the defendants, it is not necessary to
show negligence of all the defendants in order for recovery to be had
against one or more to be negligent. If you are reasonably satisfied from
the evidence in this case that all the defendants are negligent and that their
negligence concurred and combined to proximately cause the injury
complained by the plaintiffs, then each defendant is liable to the plaintiffs.
When a charge given by the court is not clear enough on a particular point, it is
the obligation of the attorneys for both sides to request clarification of the
charge. When a jury retires to deliberate, the members are reminded not to
discuss the case except among themselves.
Jury Instructions Must Not Be Prejudicial
The nursing assistant in Myers v. Heritage Enterprises, Inc. was determined
not to be in a professional position. The standard of care required by the
nursing assistant was one of ordinary negligence. Therefore, the trial court
should have instructed the jury that it had to decide how a reasonably prudent
person would have acted under the circumstances. The trial court abused its
discretion by instructing the jury on professional negligence rather than
ordinary negligence. The instructions given misled the jury and resulted in
prejudice to the plaintiff. The case was remanded for a new trial.
Court Erred in Jury Instructions
The medical malpractice action in Houserman v. Garrett was filed after a
gauze pad was discovered in the patient approximately 8 months after
surgery. The trial court was found to have erred when it instructed the jury that
the physician’s conduct was negligent without any argument as to the
surrounding circumstances (negligence per se). The physician alone was
understood to be liable for failure to remove the pad from the patient’s body.
Without clarification elsewhere in the charge, it was hard to determine what, if
anything, a physician could do to have defended himself.
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It is undisputed that a nurse was responsible for counting the surgical sponges
and surgical devices used in this procedure before and after the surgery and
that she apparently did not include the pad in her presurgery count. In
addition, she did not advise the physician, before the surgical site was closed,
that a pad was unaccounted for.
The trial judge charged the jury that the nurse’s count amounted only to an
added precaution when, in fact, in light of the evidence, the jury was entitled to
find that the nurse’s count was valid evidence that the physician had satisfied
one component of the standard of care. On appeal, the judgment was
reversed, and the case was remanded to the trial court for further proceedings.
411

▸ JURY DELIBERATION AND DETERMINATION
After the judge’s charge, the jury retires to the jury room to deliberate and
determine the defendant’s liability. The jury members return to the courtroom
upon reaching a verdict, and their determinations are presented to the court.
If a verdict is against the weight of the evidence, a judge may dismiss the
case, order a new trial, or set his or her own verdict. At the time judgment is
rendered, the losing party has an opportunity to motion for a new trial.
412

▸ AWARDING DAMAGES
Monetary damages generally are awarded to individuals in cases of personal
injury and wrongful death. Damages generally are fixed by the jury and are
nominal, compensatory, hedonic, or punitive. General damages can be
awarded as compensation “not only for physical pain but for fright,
nervousness, grief, anxiety, worry, mortification, shock, humiliation, indignity,
embarrassment, apprehension, terror or ordeal.”
1. Nominal damages are awarded as a mere token in recognition that a
wrong has been committed when the actual amount of compensation
is insignificant.
2. Compensatory damages are estimated reparation in money for
detriment or injury sustained (including loss of earnings, medical costs,
and loss of financial support).
3. Hedonic damages are those damages awarded to compensate an
individual for the loss of enjoyment of life. Such damages are awarded
because of the failure of compensatory damages to compensate an
individual adequately for the pain and suffering that he or she has
endured as a result of a negligent wrong.
4. Punitive damages are additional money awards authorized when an
injury is caused by gross carelessness or disregard for the safety of
others.
Plaintiffs seek recovery for a great variety of damages. Specific damages
typically sought by plaintiffs include those for personal injuries, permanent
physical disabilities, permanent mental disabilities, past and future physical
and mental pain and suffering sustained and to be sustained, loss of
enjoyment of life, loss of consortium where a spouse is injured in an accident,
loss of child’s services where a minor child is injured by an accident, medical
and other health expenses reasonably paid or incurred or reasonably certain
to be incurred in the future, past and future loss of earnings sustained and to
be sustained, and permanent diminution in the plaintiff’s earning capacity. The
following cases illustrate a variety of damages sought by plaintiffs.
Punitive Damages/Mighty Engine of Deterrence
Punitive damages are awarded over and above that which is intended to
compensate the plaintiff for economic losses resulting from the injury. Punitive
damages cover such items as physical disability, mental anguish, loss of a
spouse’s services, physical suffering, injury to one’s reputation, and loss of
companionship. Punitive damages were referred to as that mighty engine of
deterrence in Johnson v. Terry.
The court in Henry v. Deen held that allegations of gross and wanton
negligence incidental to wrongful death in the plaintiff’s complaint gave
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sufficient notice of a claim against the treating physician and physician’s
assistant for punitive damages. The original complaint, which alleged that the
treating physician, the physician’s assistant, and the consulting physician
agreed to create and did create false and misleading entries in the patient’s
medical record, was sufficient to allege a civil conspiracy. The decision of the
lower court was reversed, and the case was remanded for further
proceedings.
In Estes Health Care Centers v. Bannerman, discussed earlier, the court
stated:
While human life is incapable of translation into a compensatory
measurement, the amount of an award of punitive damages may be
measured by the gravity of the wrong done, the punishment called for by
the act of the wrongdoer, and the need to deter similar wrongs in order to
preserve human life.
A punitive damage award in the amount of $1.7 million for the wrongful death
of a patient from infected decubitus ulcers in Payton Health Care Facilities,
Inc. v. Estate of Campbell was found to be justified. The treating physician
had agreed to a settlement prior to trial in the amount of $50,000. The
decedent, a stroke victim, had been admitted to the Lakeland Health Care
Center for nursing and medical care. While at the center, the patient
developed several severe skin ulcers that eventually necessitated
hospitalization in Lakeland General Hospital. The patient’s condition
deteriorated to such a state that further treatment was inadequate to prolong
his life. Expert testimony had been presented that indicated that the standard
of care received by the patient while at the nursing facility was an outrageous
deviation from acceptable standards of care. There was sufficient evidence of
the willful and wanton disregard for rights of others to permit an award of
punitive damages against the companies who owned and managed the
nursing facility. The cause of death was determined to be bacteremia with
sepsis, caused by the extensive infected necrotic decubitus ulcers the patient
developed at the nursing facility.
Punitive Damages Not Awarded
Punitive damages in Brooking v. Polito were determined to be inappropriate
in an action alleging failure to diagnose pancreatic cancer in a timely manner.
It was undisputed that the defendants performed various tests on the
decedent, which included blood tests, CT scans, MRI, and ultrasound. The
tests had been analyzed, and the patient was treated accordingly.
Future Pain and Suffering
In Luecke v. Bitterman, an award of $490,000 for future pain and suffering
was found reasonable with respect to a 20-year-old patient who, as a result of
a physician’s negligent application of liquid nitrogen to remove a wart, suffered
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a 4 by 12–inch third-degree burn. The burn resulted in a scar on the right
buttock extending to the back of the thigh. The plaintiff suffered excruciating
pain and posttraumatic stress disorder.
Damages for Surviving Spouse and Children
Damages may be awarded given evidence of a patient’s pain and the mental
anguish of the surviving spouse and children. In Jefferson Hospital Association
v. Garrett, damages in the amount of $180,000 were found not to be
excessive given evidence of the patient’s pain and the mental suffering of the
surviving spouse and children.
Damages/Emotional Distress
The court of appeals in Haught v. Maceluch held that under Texas law, the
mother was entitled to recover for her emotional distress, even though she
was not conscious at the time her child was born. The mother had brought a
medical malpractice action, alleging that the physician was negligent in the
delivery of her child, causing her daughter to suffer permanent brain injury.
The district court entered judgment of $1,160,000 for the child’s medical
expenses and $175,000 for her lost future earnings. The court deleted a jury
award of $118,000 for the mother’s mental suffering over her daughter’s
impaired condition. On appeal, the court of appeals permitted recovery, under
Texas law, for mental suffering. The mother was conscious for more than 11
hours of labor and was aware of the physician’s negligent acts, his absence in
a near-emergency situation, and the overadministration of the labor-inducing
drug Pitocin.
Damages/Not Excessive
The plaintiff in Burge v. Parker suffered a laceration of his right foot on April
2 and was taken to St. Margaret’s Hospital. A physician in the emergency
department cleaned and stitched the laceration and released the patient with
instructions to keep the foot elevated. Even though reports prepared by the fire
medic who arrived on the scene of the accident and by ambulance personnel
indicated the chief complaint as being a fracture of the foot, no X-rays were
ordered in the emergency department. The admitting clerk had typed a
statement on the admission form indicating possible fracture of the right foot.
However, a handwritten note stated the chief complaint as being a laceration
of the right foot. The patient returned to the hospital later in the day with his
mother, complaining of pain in the right foot. His mother asked if X-rays had
been taken. The physician said that it was not necessary. The wound was
redressed, and the patient was sent home again with instructions to keep the
foot elevated. The pain continued to worsen, and the patient was taken to see
another physician on April 5. X-rays were ordered, and an orthopedic surgeon
called for a consultation diagnosed three fractures and a compartment
syndrome, a swelling of tissue in the muscle compartments. The swelling
increased pressure on the blood vessels, thus decreasing circulation, which
tends to cause muscles to die.
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Approximately one-half pint of clotted blood was removed from the wound. By
April 11, the big toe had to be surgically removed. It was alleged that the
emergency department physician failed to obtain a full medical history, to
order the necessary X-rays, and to diagnose and treat the fractures of the foot.
As a result, the patient ultimately suffered loss of his big toe. The Macon
County Circuit Court awarded damages totaling $450,000 for loss of a big toe,
and the physician appealed. The Alabama Supreme Court found the damages
not to have been excessive.
Award Was Fair and Just
In Tesauro v. Perrige, Mrs. Tesauro, the appellee, went to Dr. Perrige, the
appellant, to have a lower left molar removed. A blood clot failed to form, and
the appellant administered an injection of alcohol near the affected area. The
appellee began to experience pain, burning, and numbness on the left side of
her face at the site of the injection. Several physicians diagnosed her as
suffering from muscle spasms caused by a damaged trigeminal nerve. Over a
5-year period, the appellee was treated by a variety of specialists. In 1989, the
plaintiff underwent radical experimental surgery. The surgery corrected the
plaintiff’s most oppressive symptoms. Although the most painful symptoms
had been eliminated, the appellee continued to suffer numbness and burning
on the left side of her face. A dental malpractice lawsuit was filed against Dr.
Perrige alleging that he was negligent in administering the alcohol injection so
close to the trigeminal nerve. The jury returned a verdict in favor of the
plaintiffs in the amounts of $2,747,000 to Mrs. Tesauro and $593,000 to Mr.
Tesauro for loss of consortium. Dr. Perrige appealed for a new trial to be
based on the excessiveness of the jury verdict.
The superior court determined that the severity of the plaintiff’s injury would
support the compensatory award. The plaintiff spent 5 years trying to find a
cure for her pain. Although much recovered, the plaintiff continued to suffer
from numbness and burning. Her experience clearly fell into the category of
severe injury. The severity of the injury had a huge impact on the marital
relationship. The compensation awarded to Mr. Tesauro was, therefore, fair
and just.
Damages Not Based on Prejudice and Passion
A medical malpractice action was brought against the employer of a physician,
alleging that the physician’s failure to properly treat an abscess some 3 weeks
after an infant received a live polio vaccine resulted in suppression of the
infant’s immune system and the infant’s contraction of paralytic polio. The jury
in the circuit court returned a $16 million verdict in favor of the plaintiffs, and
the defendant appealed. The case was transferred from the court of appeals to
the state supreme court. Was the $16 million verdict excessive, and did the
trial court err in denying a new trial based on the alleged excessive verdict?
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The Missouri Supreme Court held that there was no basis for a new trial on
the grounds of excessiveness of the $16 million verdict. There is no formula
for determining the excessiveness of a verdict. Each case must be decided on
its own facts to determine what is fair and reasonable. A jury is in the best
position to make such a determination. The trial judge could have set aside the
verdict if a determination was made that passion and prejudice brought about
an excessive verdict. The size of the verdict alone does not establish passion
and prejudice. The appellant failed to establish that the verdict was: (1)
glaringly unwarranted and (2) based on prejudice and passion. Compensation
of a plaintiff is based on such factors as the age of the patient, the nature and
extent of injury, diminished earnings capacity, economic condition, and awards
in comparable cases. A jury is entitled to consider such intangibles that do not
lend themselves to precise calculation, such as past and future pain, suffering,
effect on lifestyle, embarrassment, humiliation, and economic loss.
Damages Excessive
A jury verdict totaling $12,393,130 was considered an excessive award in
Merrill v. Albany Medical Center, in which damages were sought with
respect to the severe brain damage sustained by a 22-month-old infant as the
result of oxygen deprivation. This occurred when the infant went into cardiac
arrest during surgery for removal of a suspected malignant tumor from her
right lung. Reduction of the amount to $6,143,130 was considered appropriate.
Damages Capped
The trial court in Judd v. Drezga was found to have properly limited a brain-
damaged infant’s recovery of quality-of-life damages to $250,000. The Idaho
cap on damages was designed to reduce healthcare costs, increase the
availability of medical malpractice insurance, and secure the continued
availability of healthcare resources—all legitimate legislative goals given the
clear social and economic evil of rising healthcare costs and a shortage of
qualified healthcare professionals. In attempting to meet its goals, the
legislature had not unreasonably or arbitrarily limited recovery. Rather, it had
chosen to place a limit on the recovery of noneconomic quality-of-life damages
—one area where legislation had been shown to actually and substantially
further these goals. Applying each individual test, the open courts, uniform
operation of laws, and due process provisions of the constitution were not
offended by the damage cap. Additionally, neither the right to a jury trial nor
the constitutional guarantee of separation of powers was offended by the cap.
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▸ JOINT AND SEVERAL LIABILITY
Joint liability is based on the concept that all joint or concurrent tortfeasors are
actually independently at fault for their own wrongful acts. Both a hospital and
its physicians can be held jointly liable for damages suffered by patients. In
Gonzales v. Nork & Mercy Hospital, the hospital was found negligent for
failing to protect the patient, a 27-year-old man, from acts of malpractice by an
independent, privately retained physician. The patient had been injured in an
automobile accident and was operated on by Dr. Nork, an orthopedic surgeon.
The plaintiff’s life expectancy was reduced as a result of an unsuccessful and
allegedly unnecessary laminectomy. It was found that the hospital knew or
should have known of the surgeon’s incompetence because the surgeon
previously had performed many operations either unnecessarily or negligently.
In such cases, the defendant produced false and inadequate findings as well
as false-positive myelograms. He deceived his patients with this information
and caused them to undergo surgery. Evidence was presented showing that
the surgeon had performed more than three dozen similar operations
unnecessarily or in a negligent manner. Even if the hospital was not aware of
the surgeon’s acts of negligence, an effective monitoring system should have
been in place for monitoring his abilities. Consequently, the surgeon and
hospital were jointly liable for damages suffered. An organization owes its
patients a duty of care, and this duty includes the obligation to protect them
from negligent and fraudulent acts of those physicians with a propensity to
commit malpractice. The courts will not permit organizations to hide behind a
cloak of ignorance in this responsibility.
Several liability should not be confused with joint and several liability. In
several liability, each party to a lawsuit is liable only to the degree he or she
has been determined to contribute to the injury. In other words, when there are
multiple defendants in a lawsuit, each defendant’s responsibility for damages
will not exceed the degree or percentage that his or her carelessness
contributed to the patient’s injury. The doctrine of joint and several liability,
however, provides that any one of the defendants to a lawsuit can be
responsible to pay the full cost of damages awarded to the plaintiff(s).
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▸ APPEALS
An appellate court reviews a case on the basis of the trial record, as well as
written briefs and, if requested, concise oral arguments by the attorneys. A
brief summarizes the facts of a case, testimony of the witnesses, laws
affecting the case, and arguments of counsel. The party making the appeal is
the appellant. The party answering the appeal is the appellee. After hearing
oral arguments, the court takes the case under advisement until such time as
the judges consider it and agree on a decision. An opinion is then prepared
explaining the reasons for a decision.
Grounds for appeal can result from one or more of the following: the verdict
was excessive or inadequate in the lower court; the evidence was rejected that
should have been accepted; inadmissible evidence was permitted; testimony
that should have been admissible was excluded; the verdict was contrary to
the weight of the evidence; the court improperly charged the jury; the jury is
confused by jury instructions; and/or the jury verdict is the result of bias,
prejudice, and/or passion.
Notice of appeal must be filed with the trial court, the appellate court, and the
adverse party. The party wishing to prevent execution of an adverse judgment
until such time as the case has been heard and decided by an appellate court
also should file a stay of execution.
The appellate court may modify, affirm, or reverse the judgment or reorder a
new trial on an appeal. The majority ruling of the judges in the appellate court
is binding on the parties of a lawsuit. If the appellate court’s decision is not
unanimous, the minority may render a dissenting opinion. Further appeal may
be made, as set by statute, to the highest court of appeals. If an appeal
involves a constitutional question, it eventually may be appealed to the U.S.
Supreme Court.
When the highest appellate court in a state decides a case, a final judgment
results, and the matter is ended. The instances when one may appeal the
ruling of a state court to the U.S. Supreme Court are rare. A federal question
must be involved, and even then, the Supreme Court must decide whether it
will hear the case. A federal question is one involving the U.S. Constitution or
a statute enacted by Congress, so it is unlikely that a negligence case arising
in a state court would be reviewed and decided by the Supreme Court.
THE COURT’S DECISION
The Supreme Court of Mississippi found that Dorrough’s arguments were
without merit, holding that the verdict by the jury was supported by the
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weight of the evidence. When evidence is in conflict, the jury is the sole
judge of both the credibility of a witness and the weight of his or her
testimony. The jury was presented with conflicting testimony concerning the
alleged negligence of Dorrough. The jury, being the sole judge of the weight
and credibility of the witnesses, determined that Dorrough was liable for the
death of Gwendolyn and awarded damages.80
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▸ EXECUTION OF JUDGMENTS
Once the amount of damages has been established and all the appeals have
been heard, the defendant must comply with the judgment. If he or she fails to
do so, a court order may be executed requiring the sheriff or other judicial
officer to sell as much of the defendant’s property as necessary, within
statutory limitations, to satisfy the plaintiff’s judgment.
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▸ CHAPTER REVIEW
1. The pleadings of a case are the written statements of fact and law filed
with a court by the parties to a lawsuit. Pleadings generally include
such papers as a complaint, demurrer, answer, and bill of particulars.
If only questions of law are at issue, the judge will decide the
case based on the pleadings.
If there are questions of fact, a trial will be held to determine
those facts. In a negligence action, the first pleading filed with
the court is a complaint, which identifies the parties to a suit,
the cause of action, and the demand for damages.
2. Once a defendant receives a copy of the complaint, the defendant can
file a preliminary objection before submitting an answer, or response,
to the complaint. A formal objection to the lawsuit is called a demurrer,
and it holds that the evidence presented by the plaintiff is insufficient to
sustain an issue or case. The defendant can file a counterclaim if he or
she has a claim against the plaintiff.
3. Before the trial, facts are investigated in a process called discovery.
The discovery process helps to prevent surprises during trial.
Examination before trial is part of the discovery process that
allows for witnesses to be examined prior to trial.
Generally, hospital incident and investigation reports are not
protected from discovery.
Communications between client and attorney are protected
under attorney–client privilege.
4. A motion to dismiss a case can be made before, during, or after the
trial.
The motion alleges that the plaintiff’s complaint does not set
forth a claim or cause of action that is recognized by law.
If either party to a suit believes that there are no issues of fact
in contention, only issues of law, they may make a motion for a
summary judgment, in which the court is asked to rule without a
trial.
5. The case is heard in the court that has jurisdiction over the subject in
controversy.
The judge presides over court proceedings and decides
questions of law.
The jury reviews the facts of a case offered by opposing
counsels and makes an impartial decision as to the guilt of the
defendant(s).
6. A subpoena is a legal order requiring a person to appear in court.
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7. Res ipsa loquitur (“the thing speaks for itself” or “circumstances speak
for themselves”) is the legal doctrine that shifts the burden of proof in a
negligence case from the plaintiff to the defendant.
8. The judicial notice rule prescribes that well-known facts need not be
proven (e.g., fractures require prompt attention).
9. There are multiple types of evidence that can be presented at trial.
Direct evidence
Demonstrative evidence
Documentary evidence
Hearsay evidence
10. When the issues to be resolved in the case are outside the
understanding or experience of the average juror, an expert witness is
allowed to offer testimony to assist in explanation of technical matters.
The testimony of two experts may conflict, in which case the jury will
determine which opinion to accept. An expert witness must have
experience and training sufficient to explain the facts or answer the
questions of a particular case.
11. Types of defenses offered by the defendant(s):
Ignorance of fact and unintentional wrongs
Assumption of the risk
Contributory negligence
Comparative negligence
Good Samaritan statutes
Borrowed servant doctrine
Captain of the ship doctrine
Statute of limitations
Sovereign immunity
Intervening cause
12. Damages, which are usually determined by the jury, come in four
forms:
Nominal damages
Compensatory damages
Hedonic damages
Punitive damages
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▸ REVIEW QUESTIONS
1. Discuss the pretrial discovery process.
2. Describe the trial process.
3. Describe the role of the judge and jury in the trial process.
4. Explain the terms res ipsa loquitur and judicial notice rule.
5. Describe the forms of evidence presented by a plaintiff at trial.
6. Describe defenses to a lawsuit a defendant can offer at trial.
7. Explain the purpose of the judge’s charge to the jury.
8. Describe the various types of damages that can be awarded to the
plaintiff.
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▸ NOTES
1. Dorrough v. Wilkes, 817 So. 2d 567 (2002).
2. The Honorable Susan K. Gauvey and Heather R. Pruger, “Trials, Verdicts and
Mediation,” Maryland Bar Journal, July 2010.
3. Collins v. Park, 423 Pa. Superior Ct. 601,606, 621 A.2d 996 (Pa. Super. Ct.
1993).
4. Kern v. Gulf Coast Nursing Home of Moss Point, Inc., 502 So. 2d 1198, 1202
(Miss. 1987).
5. 244 Wis. 2d 112, 629 N.W.2d 66 (2001).
6. Id. at 111.
7. Id. at 112.
8. Personal Representative, etc., Appellant, v. Osceola Mental Health, Inc., etc.,
et al. Appellee, Court of Appeal of Florida, Fifth District, No. 5D11–2513
(Opinion filed January 11, 2013).
9. 725 N.Y.S.2d 35 (2001).
10. 600 A.2d 1063 (D.C. 1991).
11. Id. at 1070.
12. Steve Cohen, “Malpractice,” The New Yorker, October 1 (1990): 43, 47.
13. NOLO, “What are the elements of a crime?” http://www.nolo.com/legal-
encyclopedia/what-the-elements-crime.html.
14. 696 S.W.2d 16 (Tenn. Ct. App. 1985).
15. 503 N.Y.S.2d 131 (N.Y. App. Div. 1986).
16. Id. at 432.
17. 720 N.E.2d 1175 (Ind. App. 1999).
18. 405 A.2d 443 (N.J. Sup. Ct. 1979).
19. 445 N.W.2d 763 (Iowa 1989).
20. 128 P.3d 151 (Alas. 2006).
21. 854 S.W.2d 250 (Tex. Ct. App. 1993).
22. 488 S.E.2d 389 (W. Va. 1997).
23. The National Court Rules Committee, “Rule 1008 – Functions of the Court and
Jury,” https://www.rulesofevidence.org/article-x/rule-1008/.
24. Jeffrey Bellin, “The Virginia and Federal Rules of Evidence,” April 9, 2015.
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2591371.
25. 337 P.2d 974 (Or. 1959).
26. 221 N.W.2d 39 (S.D. 1974).
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http://www.nolo.com/legal-encyclopedia/what-the-elements-crime.html

Rule 1008 – Functions of the Court and Jury

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2591371

27. Id.
28. Id.
29. 786 F.2d 859 (8th Cir. 1986).
30. No. 11-13752 (E.D. Mich. Feb. 5, 2013).
31. Id.
32. 335 S.E.2d 712 (Ga. Ct. App. 1985).
33. Spirito v. Temple Corp., 466 N.E.2d 491 (Ind. Ct. App. 1984).
34. 746 P.2d 1006 (Idaho Ct. App. 1987).
35. 346 S.E.2d 528 (S.C. 1986).
36. Id.
37. 291 N.E.2d 769 (Ohio Ct. App. 1973).
38. 320 A.2d 704 (Del. 1974).
39. 340 So. 2d 1065 (La. Ct. App. 1976).
40. 373 N.Y.S.2d 224 (N.Y. App. Div. 1975).
41. 320 A.2d 704 (Del. 1974).
42. 469 N.W.2d 74 (Mich. Ct. App. 1991).
43. Id. at 76.
44. 746 S.W.2d 108 (Mo. Ct. App. 1988).
45. Oberzan v. Smith, 869 P.2d 682 (Kan. 1994).
46. 4 N.W.2d 637–639 (Minn. 1942).
47. 738 P.2d 75 (Colo. Ct. App. 1987).
48. 75 N.W.2d 217 (Minn. 1956).
49. 358 S.E.2d 222 (W. Va. 1987).
50. Id. at 224.
51. 320 A.2d 637 (N.H. 1974).
52. Id.
53. Wooten v. United States, 574 F. Supp. 200 (W.D. Tenn. 1982).
54. 463 F. Supp. 321 (D. Alaska 1978).
55. Texas Municipal League, “Texas Tort Claims Act Q&A,” February 2005,
http://www.tml.org/legal-qna/2005February .
56. 657 N.Y.S.2d 419, 239 A.D.2d 287 (1997).
57. 248 A.D.2d 322 (1988).
58. 154 S.E.2d 461 (Ga. Ct. App. 1967).
59. Stephen H. Gifis, Law Dictionary (Hauppauge, NY: Barron’s Educational
Series, 1996), 145.
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http://www.tml.org/legal-qna/2005February

60. United States District Court Southern District of New York, “Handbook for Trial
Jurors,” http://www.nysd.uscourts.gov/jury_handbook.php.
61. 411 So. 2d 109 (Ala. 1982).
62. 657 N.Y.S.2d 419 (N.Y. App. Div. 1997).
63. 820 N.E.2d 604, 354 Ill. App.3d 241, 289 (Ill. App. Ct. 2004).
64. Nos. 1030587 & 1030789 (Ala. 2004).
65. Capelouto v. Kaiser Foundation Hospitals (1972) 7 Cal. 3d 889, 892-893 [103
Cal. Rptr. 856, 500 P.2d 880].
66. No. 537–907 (Wis. Cir. Ct. Mar. 18, 1983).
67. 310 S.E.2d 326 (N.C. 1984).
68. 411 So. 2d 109, 113 (Ala. 1982).
69. 497 So. 2d 1233 (Fla. Dist. Ct. App. 1986).
70. 16 A.D.3d 898, 791 N.Y.S.2d 686 (N.Y. App. Div. 2005).
71. 658 N.Y.S.2d 34 (N.Y. App. Div. 1997).
72. 804 S.W.2d 711 (Ark. 1991).
73. 681 F.2d 291 (5th Cir. 1982).
74. 510 So. 2d 538 (Ala. 1987).
75. 650 A.2d 1079 (Pa. Super. 1994).
76. Callahan v. Cardinal Glennon Hosp., 863 S.W.2d 852 (Mo. 1993).
77. 512 N.Y.S.2d 519 (N.Y. App. Div. 1987).
78. 103 P.3d 135, 2004 UT 91 (Utah, 2004).
79. No. 228566 (Cal. Super. Ct. Sacramento Co. 1976).
80. Roussel v. Robbins, 688 So. 2d 714, 723–724 (Miss. 1996).
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CHAPTER 9
Corporate Structure and Legal Issues
IT’S YOUR GAVEL…
NURSE ANESTHETIST: MEDICAL SUPERVISION REQUIRED
Mrs. LaCroix was admitted to the hospital’s women’s pavilion for the birth of
her first child, Lawryn. She was admitted to the hospital under the care of
Dr. Dulemba, her obstetrician. Prior to undergoing a cesarean section,
LaCroix complained several times of breathing difficulty. When Dr.
McGehee, the pediatrician, arrived, he noticed that LaCroix appeared to be
in respiratory distress and heard her say, “I can’t breathe.” McGehee asked
Nurse Blankenship, a certified registered nurse anesthetist (CRNA), if
LaCroix was okay. She responded that LaCroix was just nervous. Mr.
LaCroix claimed his wife whispered to him that she could not breathe. Mr.
LaCroix then shouted, “She can’t breathe. Somebody please help my wife.”
Blankenship asked that Mr. LaCroix be removed from the operating room
because his wife was having what appeared to her to be a seizure.
Blankenship could not establish an airway. She told one of the nurses: “Get
one of the anesthesiologists here now!” Dr. Green, who was in his car, was
paged. Upon receiving the page, he immediately drove to the women’s
pavilion, where Dulemba had already started the cesarean section. When
Lawryn was delivered, she was not breathing, and McGehee had to
resuscitate her. Meanwhile, Blankenship worked to establish an airway for
LaCroix. The intubation was, however, an esophageal intubation. Dulemba
stated that he thought that the intubation was esophageal. LaCroix’s blood
pressure and pulse dropped, and she went into cardiac arrest. A physician
and nurse from the hospital’s emergency department responded to a code
for assistance. McGehee testified that the emergency department physician
said that he did not know how to resuscitate pregnant women and left
without providing any medical care. Dulemba and a nurse began
cardiopulmonary resuscitation on LaCroix. McGehee, having finished
treating Lawryn, took control of the code. LaCroix suffered irreversible brain
damage.
Blankenship and Dr. Hafiz, the Denton Anesthesiology Associates (DAA),
PA, anesthesiologist on call for the women’s pavilion on the day of LaCroix’s
incident, settled with the LaCroixes by paying $500,000 and $750,000,
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respectively. The trial court entered a judgment against the hospital,
awarding the LaCroixes approximately $8.8 million in damages.
Was the evidence sufficient to hold the hospital liable for medical negligence
under a theory of corporate liability?
WHAT IS YOUR VERDICT?
It is of utmost importance that each organization recognizes that its
successes lies with its ability to assure the staff, community, and
patients that it holds itself accountable to ensuring the highest standards of
quality professional care and the well-being of all that enter its hallowed halls.
—Gp
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▸ LEARNING OBJECTIVES
The reader, upon completion of this chapter, will be able to:
Explain from where a corporation derives its authority.
Explain the difference between express, implied, and corporate
authority.
Discuss corporate organization and committee structure.
Describe corporate ethics, the Sarbanes Oxley Act of 2002, and
corporate compliance.
Explain the terms corporate negligence, respondeat superior, and
independent contractor.
Describe the duties of healthcare organizations, the chief executive
officer (CEO), and medical staff.
Explain the purpose of corporate reorganization and the process of
restructuring.
Describe what is meant by parent holding company model.
Describe what the Safe Harbor Act is designed to regulate.
This chapter introduces the healthcare professional to the responsibilities, as
well as legal risks, of healthcare organizations and their governing bodies.
Healthcare organizations are incorporated under state law as freestanding for-
profit or not-for-profit corporations. Each corporation has a governing body
(e.g., board of directors) that has ultimate responsibility for the operation of the
organization. The existence of this authority creates certain duties and
liabilities for governing boards and their individual members. The governing
body is legally responsible for establishing and implementing policies
regarding the management and operation of the organization. Responsibility
for the day-to-day operations of an organization is generally accomplished by
appointing a chief executive officer.
Not-for-profit healthcare organizations are exempt from federal taxation under
Section 501(c)(3) of the Internal Revenue Code of 1986, as amended. Such
federal exemption usually entitles the organization to an automatic exemption
from state taxes as well. Such tax exemption not only relieves the organization
from the payment of income taxes and sales taxes, but also permits the
organization to receive contributions from donors, who then may obtain
charitable deductions on their personal income tax returns.
The tax-exempt status of healthcare corporations is increasingly coming under
scrutiny as they diversify their activities to generate higher revenues. The City
of Pittsburgh initiated a challenge to the payroll tax exemption claimed by the
University of Pittsburgh Medical Center (UPMC), which claims the exemption
on the basis of its status as an “institution of purely public charity,” or “IPPC,”
under Pennsylvania law. Questionable activities of UPMC’s alleged offenses
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include: expanding business operations that include investment partnerships
and more than 50 taxable corporations; not offering charitable services
through many of its 400 doctors’ offices and outpatient sites; closing facilities
in locations with relatively high numbers of Medicare-eligible, Medicaid-
eligible, or uninsured patients and opening or expanding facilities where there
are proportionately more privately insured patients; paying more than 20
officers, directors, and key employees compensation in excess of $1 million,
with the chief executive officer (CEO) receiving significantly more, as well as a
lavish office space, private chef and dining room, private chauffeur, and
private jet; turning over unpaid accounts to a collection agency or a law firm for
further collections and legal action against its patients; and the list goes on.
Failure of hospitals to show that their expanding joint ventures with physicians
are not-for-profit activities, for example, could jeopardize their tax exempt
status.
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▸ AUTHORITY OF CORPORATIONS
Healthcare corporations—governmental, charitable, or proprietary—have
certain powers expressly or implicitly granted to them by state statutes.
Generally, the authority of a corporation is expressed in the law under which
the corporation is chartered and in the corporation’s articles of incorporation.
The existence of this authority creates certain duties and liabilities for
governing bodies and their individual members. Members of the governing
body of an organization have both express and implied corporate authority.
Fiduciary Responsibility
Board members (trustees, directors) are not always fully aware of the fiduciary
responsibilities and legal risks they undertake when serving on a corporate
board. Although it is an honor to be a member of a hospital board, board
members must be fully knowledgeable regarding their legal liability risks in
their positions of trust and service to the organization.
A person who has a relationship of trust or confidence with another is
called a fiduciary. A fiduciary’s relationship with an organization is one-
sided, meaning that the relationship is designed to meet only the needs of
the organization and the fiduciary must act without regard to his or her own
needs. In hospitals and systems, board members are fiduciaries because
they have been entrusted with overseeing the fulfillment of the
organization’s mission. They must be principally concerned about the
performance of the nonprofit and that its interests are pursued faithfully.
Corporate boards must act in the best interests of the healthcare entities they
represent and the communities they serve. Their fiduciary responsibilities
include: corporate finances; providing quality care and a safe work
environment for staff, patients, and visitors; and periodically assessing the
organization’s progress, programs, and services. Trustees must be fully
informed by the CEO prior to making business decisions. They must abide by
applicable laws, rules, regulations, and standards that regulate hospital
operations. Trustees must be objective in their decision-making processes and
free from the pressures and the all-to-often challenging demands and
influences from within (e.g., professional staff requests designed to improve
personal economic gain) and outside the organization. Board members must
be free of conflicts of interest when discussing and making policy and financial
decisions. Conflict of interest statements for trustees and staff should disclose
on an annual basis known financial interest with any business entity that
transacts business with the corporation or its subsidiary businesses, when
applicable. Board members can be held liable for their actions or inactions
when carrying out their fiduciary duties and responsibilities.
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The directors are entrusted with the management of the affairs of the
railroad. If in the course of management they arrive at a decision for which
there is a reasonable basis, and they acted in good faith, as the result of
their independent judgment, and uninfluenced by any consideration other
than what they honestly believe to be for the best interests of the railroad, it
is not the function of the court to say that it would have acted differently
and to charge the directors for any loss or expenditures incurred.
The “Courts have properly decided to give directors a wide latitude in the
management of the affairs of a corporation provided always that judgment,
and that means an honest, unbiased judgment, is reasonable [sic] exercised
by them.”
Express Corporate Authority
Express corporate authority is the power specifically delegated by statute. A
healthcare corporation derives its authority to act from the laws of the state in
which it is incorporated. The articles of incorporation set forth the purpose(s) of
the corporation’s existence and the powers the corporation is authorized to
exercise in order to carry out its purposes.
Implied Corporate Authority
Implied corporate authority is the right to perform any and all acts necessary to
exercise a corporation’s expressly conferred authority and to accomplish the
purpose(s) for which it was created. Generally, implied corporate authority
arises from situations in which such authority is required or suggested as a
result of a need for corporate powers not specifically granted in the articles of
incorporation. A governing body, at its own discretion, may enact new bylaws,
rules, and regulations; purchase or mortgage property; borrow money;
purchase equipment; select employees; and adopt corporate resolutions that
delineate decision-making responsibilities. These powers can be enumerated
in the articles of incorporation and, in such cases, would be categorized as
express rather than implied corporate authority.
Select Competent Physicians
The Florida Supreme Court held in Insinga v. LaBella that the corporate
negligence doctrine imposes on hospitals an implied duty to patients to select
competent physicians who, although they are independent practitioners, would
be providing in-hospital care to their patients through staff privileges. Hospitals
are in the best position to protect their patients and consequently have an
independent duty to provide staff privileges only to competent independent
physicians.
In this case, an action was brought against Canton (who was masquerading
as a physician, Dr. LaBella), a hospital, and others for the wrongful death of a
68-year-old woman whom Canton had admitted. The patient died while she
was in the hospital. Canton was found to be a fugitive from justice in Canada
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where he was under indictment for the manufacture and sale of illegal drugs.
He fraudulently obtained a medical license from the state of Florida and staff
privileges at the hospital by using the name of LaBella, a deceased physician.
Canton was extradited to Canada without being served process.
QUESTIONABLE FUNDS TRANSFER
Jim, the administrator of East Campus Hospital, one of three hospitals in a
multihospital system, was reviewing his mail and reports placed in his inbox
by Carol, his secretary. He noticed what appeared to be a copy of
correspondence that had been forwarded to him from the Bishop. The letter,
describing a donation that had been made, read:
Dear Bishop John,
Enclosed is a contribution from David and his wife. He originally heard
about our fundraising activities through the co-chairman of the
fundraising appeal. The care he received at the East Campus Hospital
was outstanding and he would like to make a contribution on our behalf.
Sincerely,
After reading his morning mail and reports, Jim placed the letter in his
outbox for filing. Carol later picked up Jim’s mail and other reports from his
outbox. Later that afternoon, Carol walked back into Jim’s office and
inquired, “Did you read this letter forwarded to you from the corporate
office?” Handing the letter to Jim, he replied, “Yes, I read it.” Carol then
asked, “Did you see anything that piqued your curiosity in this letter?” Jim
replied that he had not. Carol, pointing at a strip of whiteout tape, urged Jim
to look more closely. She then asked Jim to turn the letter over and read the
words the tape was covering. He turned the letter over, noting what the letter
had said. It appeared that only a copy of the original correspondence had
been intended for Jim, not the original correspondence. With the missing
words inserted, the correspondence read:
Dear Bishop John,
Enclosed is a contribution from David and his wife. He originally heard
about our fundraising activities through the co-chairman of the
fundraising appeal. The care he received at the East Campus Hospital
was outstanding and he would like to make a contribution on our behalf,
earmarked for the East Campus Hospital.
Sincerely,
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The question arises as to why the whiteout tape was placed over the words,
“earmarked for the East Campus Hospital.” Jim was in a quandary as to
what further action he should take to determine the amount of and the
location of the funds earmarked for the hospital. Also, he could not
absolutely determine who placed the whiteout tape on the correspondence.
Was it the letter’s author or addressee or corporate employee? To question
the bishop directly would be tantamount to political suicide. Jim decided to
ask the VP for financial affairs at the corporate offices about the amount of
the donation and where it would appear on his hospital’s financial
statements. The VP, however, resisted discussing the matter with Jim. The
hospital’s controller, who had double reporting obligations to both Jim and
the VP, stated that he was unaware of the specifics of the donation.
The surgeon in Purcell & Tucson General Hospital v. Zimbelman performed
inappropriate surgery because of his misdiagnosis of the patient’s ailment.
Prior malpractice suits against the surgeon revealed that the hospital had
reason to know or should have known that the surgeon apparently lacked the
skill to treat the patient’s condition. The court held that the hospital had a clear
duty to select competent physicians; to regulate the privileges granted to staff
physicians; to ensure that privileges are conferred only for those procedures
for which the physician is trained and qualified; and to restrict, suspend, or
require supervision when a physician has demonstrated an inability to perform
certain procedures. The hospital assumed the duty of supervising the
competence of its physicians. The department of surgery was acting for and
on behalf of the hospital in fulfilling this duty. The court noted that it is
reasonable to conclude that if the hospital had taken some action against the
surgeon, the patient would not have been injured.
Ultra Vires Acts
Ultra vires is a Latin term meaning “beyond the powers.” Ultra vires acts are
those acts conducted by an organization that lie beyond the scope of authority
of a corporation to perform. A governing body, which acts in and on behalf of
the corporation, can be held liable for acting beyond its scope of authority,
which is either expressed (e.g., in its articles of incorporation) or implied in law.
If any action is in violation of a statute or regulation, it is illegal. An example of
an illegal act would be the “known” employment of an unlicensed person in a
position that by law requires a license. The state, through its attorney general,
has the power to prevent the performance of an ultra vires act by means of an
injunction.
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▸ CORPORATE COMMITTEE STRUCTURE
Ultimate responsibility for the functioning of a healthcare corporation rests with
the governing body. Ideally, the governing body includes representation from
both the community and the organization’s medical staff. The business of the
governing body is generally conducted through a variety of committees. It
should be noted that committee titles and responsibilities often vary from
organization to organization based on size, complexity, and services rendered.
Some of those committees are described here.
Executive Committee
The executive committee is a working group of the governing body that has
delegated authority to act on behalf of the full board. It must act within the
scope and authority assigned by the governing body. The duties and
responsibilities of the committee should be delineated in the corporate bylaws.
The functions of the executive committee generally include acting as a liaison
between management and the full board, reviewing and making
recommendations on management proposals, and performing special
assignments as may be delegated by the full board from time to time.
Business transactions and actions taken by the executive committee should
be reported at regular sessions of the governing body and ratified. The
executive committee generally has all the powers of the governing body,
except such powers as the governing body may be prohibited from delegating
in accordance with applicable laws.
Bylaws Committee
The bylaws committee reviews and recommends bylaw changes to the
governing body. Bylaws generally are amended or rescinded by a majority
vote of the governing body.
Finance Committee
The finance committee is responsible for overseeing the financial affairs of the
organization and making recommendations to the governing body. This
committee is responsible for directing and reviewing the preparation of
financial statements, operating budgets, major capital requests, and so on.
The governing body must approve actions of the finance committee.
Joint Conference Committee
The joint conference committee is a committee composed of an equal number
of representatives from the executive committees of the governing body and
medical staff, along with representation from administration and nursing. The
committee acts as a forum for discussion of matters of policy and practice
pertaining to patient care. The committee generally meets quarterly and
reports on its activities to the governing body.
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Nominating Committee
The nominating committee is generally responsible for developing and
recommending to the governing body criteria for governing body membership.
The requirements for membership to a governing body generally include a
willingness to devote the time and energy necessary to fulfill the commitment
as a board member, residence in the community or an identifiable association
with the community served, demonstration of a knowledge of local healthcare
issues, possession of the traits of good moral character and maturity, and
professional and appropriate life experiences necessary to make managerial
decisions in the healthcare setting.
Planning Committee
The planning committee is responsible for recommending to the governing
body the use and development of organizational resources as they relate to
the mission and vision of the organization. Specifically, the planning committee
oversees the development of short-term and long-range goals, acquisition of
major equipment, addition of new services based on identified community
need, program development, and the preparation of progress reports for the
full board. Major issues that the planning committee reviews include the
organization’s need to increase market share, expand services, downsize
where appropriate, and integrate services across the entire continuum of care
in a competitive marketplace.
The committee generally includes representation from the governing body,
administration, medical staff, and nursing. When organizational planning
affects the delivery of patient care services, a mechanism for obtaining
employee and community input is incorporated into the planning process.
Although there are times this does not occur, every effort should be made to
include staff and community input when planning new services or major capital
expenditures that are designed to serve the community. When planning a new
emergency department for example, such input is of the utmost importance
when addressing community concerns about the hospital’s ability to provide
adequate emergency services.
Patient Care Committee
The patient care committee reviews the quality of patient care rendered in the
organization and makes recommendations for the improvement of such care.
The committee is generally responsible for developing a process to identify
patient and family needs and expectations and to establish a process to
continuously improve customer relations. This process often includes
development of a tool to identify patient and family needs and expectations;
methodology for reviewing data; identification of patterns of concern; a
mechanism for forwarding information to those responsible for implementing
change in the organization; and continuing review, evaluation, and
implementation of plans for improving organizational performance.
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Audit and Regulatory Compliance Committee
The audit and regulatory compliance committee is responsible for the
assessment of various functions and control systems of the organization and
for providing management with analysis and recommendations regarding
activities reviewed. Healthcare organizations must be vigilant in conducting
their financial affairs. As the boards of several investment organizations have
experienced in recent years, failure to do so can result in fines and
imprisonment. An effective audit committee can be helpful in uncovering and
thwarting poor or inept financial decision making. The committee should
include members from the governing body and internal auditing staff.
Responsibilities of the committee include developing corporate auditing
policies and procedures; recommending independent auditors to the governing
body; reviewing the credentials of the independent auditors and facilitating
change in auditors as may be deemed appropriate; reviewing with
independent auditors the proposed scope and general extent of their auditing
duties and responsibilities; reviewing the scope and results of the annual audit
with the independent auditors and the organization’s management staff;
setting, overseeing, reviewing, and acting on the recommendations of the
internal audit staff; reviewing the internal accounting practices of the
corporation, including policies and procedures; reviewing and evaluating
financial statements (e.g., income statements, balance sheets, cash flow
reports, investment accounts); promoting the prevention, detection,
deterrence, and reporting of fraud; reviewing the means for safeguarding
assets and, as appropriate, the existence of such assets; ensuring that
financial reporting functions are in keeping with generally accepted accounting
principles; and reviewing the reliability and integrity of financial and operating
information.
Failure on the part of an audit committee to question management’s
representations may be the basis for committee malfeasance, because the
committee and the governing body may be held liable for their failure to know
what they were responsible for recognizing.
Safety Committee
The safety committee is generally charged with responsibility for overseeing
the organization’s safety management program. The committee reviews and
acts on reports involving the organization’s emergency preparedness,
equipment management, fire safety, risk management, and utilities
management programs.
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▸ CORPORATE ETHICS
Corporate ethics describes the ethics of an organization and how it responds
to internal or external circumstances affecting the organization’s mission and
values. Ethical behavior in an organization can be enhanced by providing staff
members with a written code of ethics; providing training and education to
improve each staff member’s knowledge base, skills, and competencies;
providing easy access to professional sources to assist in resolving ethical
issues in the workplace; and providing systems for confidential reporting of
breaches in ethical conduct within and outside of the organization. Although
most healthcare organizations have published their mission, vision, and values
statements, policy and practice continue to be distant relatives. Commitment
to organizational ethics begins with the organization’s leadership.
The purpose of organizational ethics in the healthcare setting is to promote
responsible behavior in the decision-making process. Recent interest in
organizational ethics is, in part, the result of concerns of government
regulations (e.g., Sarbanes–Oxley Act, Emergency Medical Treatment and
Active Labor Act) and accrediting agencies that certain unethical practices
continue to plague the industry. These practices include billing scams, false
advertising and marketing, and patient care issues (e.g., inappropriate patient
transfers based on ability to pay, transferring patients before they have been
clinically stabilized). Commitment to organizational ethics must begin with the
organization’s leadership.
Corporate Code of Ethics
The following list provides some value statements that should be considered
when preparing an organization’s code of ethics:
1. Employees and staff members will comply with the organization’s code
of ethics, which includes compassionate care; an understanding and
acceptance of the organization’s mission, vision, and values; and
adherence to one’s professional code of conduct.
2. The organization will be honest and fair in dealings with employees.
3. The organization will develop and maintain an environment that fosters
the highest ethical and legal standards.
4. Employers and employees will be impartial when personal interests
conflict with those of others.
5. Employees will be free to speak up without fear of retribution or
retaliation.
6. The preservation of harmony will not become more important than the
critical evaluation of ideas by “all” employees. The pitfalls of groupthink
occur when a committee, for example, prefers harmony and conformity
to rational resolutions to a stated problem in the decision-making
process. This will not be acceptable conduct in the organization.
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7. Employees will be provided with a safe environment within which to
work.
8. The drive to increase revenues will not be tied to unethical activities,
such as workforce cutbacks as a means to discharge employees when
they are encouraged to speak up and then ostracized because of their
honesty.
9. Employees will avoid conflict of interest situations by not favoring their
own self-interests over those of others, including the organization.
10. Patients will be provided with care that is of the highest quality
regardless of the setting.
11. All patients will be treated with honesty, dignity, respect, and courtesy.
12. Patients will be informed of the risks, benefits, and alternatives to care.
13. Patients will be treated in a manner that preserves their rights, dignity,
autonomy, self-esteem, privacy, and involvement in their care.
14. Each patient’s culture, religion, and heritage will be respected and
addressed as appropriate.
15. The organization will provide assistance to patients and their families
through a patient advocate.
16. The organization will provide appropriate support services for those
with language barriers or physical disabilities (e.g., hearing and seeing
impaired).
17. Patients will be provided with a “Patient’s Bill of Rights and
Responsibilities” on admission to the hospital.
18. Each patient’s right to execute advance directives will be honored.
Sarbanes–Oxley Act
The Sarbanes–Oxley Act of 2002, commonly called SOX or SARBOX, was
enacted as a response to the misconduct committed by executives at
companies such as Enron, World Com, and Tyco, resulting in investor losses
exceeding a half trillion dollars. To protect investors in public companies and
improve the accuracy and reliability of corporate disclosures, SOX requires top
executives of public corporations to vouch for the financial reports of their
companies. The act encourages self-regulation and the need to promote due
diligence; selecting a leader with morals and core values; examining
incentives; constantly monitoring the organization’s culture; building a strong,
knowledgeable governing body; continuously searching for conflicts of interest
in the organization; focusing attention on processes and controls that support
accurate financial reporting through documented policies and procedures; and
establishing strong standards of conduct and a code of ethics that encourages
employees to report unethical or fraudulent behavior without fear of retribution.
The act covers issues such as establishing a public company accounting
oversight board, auditor independence, corporate responsibility, and enhanced
financial disclosure. Major provisions of SOX include certification of financial
reports by CEOs and chief financial officers (CFOs); ban on personal loans to
any executive officer or director; accelerated reporting of trades by insiders;
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prohibition on insider trades during pension fund blackout periods; public
reporting of CEO and CFO compensation and profits; internal audit board
independence; criminal and civil penalties for securities violations; obligation to
have an internal audit function, which will need to be certified by external
auditors; significantly longer jail sentences and larger fines for corporate
executives who knowingly misstate financial statements; and codes of ethics
and standards of conduct for executive officers and board members (most
companies have expanded their code of ethics to include all employees and
attach the document to their public reports).
Although not-for-profit organizations are not legally required to adopt SOX, the
accountability and financial reporting requirements are being adopted by many
not-for-profit hospitals. Two provisions of the Act that have universal
application to both for-profit and not-for-profit corporations are:
Section 802: prohibition from knowingly altering, destroying, mutilating,
concealing, and impeding or covering up government investigations.
Section 1107: Proscription of criminal penalties for retaliation against
whistleblowers.
Corporate Compliance Program
The federal government’s initiative to investigate and prosecute healthcare
organizations for criminal wrongdoing, coupled with strong sanctions imposed
after conviction, have resulted in healthcare organizations establishing
corporate compliance programs. These programs establish internal
mechanisms for preventing, detecting, and reporting criminal conduct.
Sentencing incentives are in place for organizations that establish such
programs. An effective compliance program should include the design,
implementation, and enforcement of program policies, procedures, and
processes to facilitate the prevention and detection of criminal conduct. An
effective corporate compliance program should include the following elements:
1. Appointment of a corporate compliance officer to oversee the
corporate compliance program.
2. Development of standards of conduct, policies, procedures, and
processes to help reduce the risk of criminal conduct.
3. Assignment of duties, authority, and responsibility to employees with
high integrity.
4. Communication and education of all employees and agents as to the
organization’s corporate compliance standards. This can be
accomplished through required education programs, computer training
modules, and disseminating publications that describe the
organization’s compliance program.
5. Utilization of monitoring and auditing systems designed to detect
criminal conduct by employees and agents. This should include a
program for publicizing a reporting system whereby employees and
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other agents are easily able to report criminal conduct by others within
the organization without fear of retribution. A hotline number should be
available to receive and review complaints. Procedures should be
implemented to protect the anonymity of complainants from retaliation.
6. Policies must be consistently enforced through appropriate disciplinary
mechanisms. Suspected illegal conduct should be handled through the
corporate compliance officer.
7. The organization must take all reasonable steps to respond
appropriately to any offense in order to prevent similar offenses.
8. An audit of the organization’s corporate compliance program should be
conducted annually. Policies, procedures, and processes should be
redesigned as necessary. It is important that the corporate board
participate in the review and evaluation process.
9. The integrity and effectiveness of a compliance program will hold up
only as long as there is trust in management on all levels within the
organization.
As noted in the following reality check, the duties and responsibilities of the
compliance officer can be compromised when the corporation pays the salary
of the compliance officer. As they say in the world of finance, “follow the
money” and then you will know where loyalties lie.
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▸ CORPORATE NEGLIGENCE
There are duties that a healthcare corporation itself owes to the general public
and to its patients. These duties arise from statutes, regulations, principles of
law developed by the courts, and the internal operating rules of the
organization. A corporation is treated no differently than an individual. If a
corporation has a duty and fails in the exercise of that duty, it has the same
liability to the injured party that an individual would have.
COMPLIANCE OFFICER AND CONFIDENTIALITY
The employee who decides to place confidence and trust in a corporate
compliance officer must understand the following points, among others, prior
to filing a complaint against any organizational practice, individual, and/or
department within or entity owned by the organization:
The compliance officer is hired by and is responsible to the
corporation by which he or she is hired.
Compliance officers often report directly to the organization’s
corporate counsel, CEO, and/or board of directors/trustees.
The compliance officer is expected to abide by the laws of the land
and follow the code(s) of ethics applicable to compliance officers in
general and any ethical principles or codes of ethics that apply to his
or her profession. For example, a compliance officer who is a lawyer
is expected to adhere to those professional code(s) of ethics that
apply to lawyers from both a professional and state licensing
standpoint. Failure to do so can result in professional discipline and
sanctions against the compliance officer.
Compliance officers are expected to maintain confidentiality
regarding the names of employees who file complaints.
Organizations often have compliance hotlines to protect the identity
of employees who file complaints.
The position of compliance officers is difficult; they must try to balance: (1)
the confidentiality and privacy rights of employees; (2) satisfying the
expectations of management and the governing body who pays the
compliance officer’s salary; and (3) adhering to applicable laws, rules, and
regulations pertaining to the compliance officer’s duties and responsibilities.
Visualizing Lady Justice, these three demands weigh heavily on the
compliance officer who sits alone on the opposite side of the scales.
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When working for a salary paid by an organization, adhering to standards of
ethical conduct is not necessarily consistent with a compliance officer’s list
of priorities, as Phil was about to learn.
Phil, having exhausted all other appeals in his complaint, called Beth, the
compliance officer, to speak with her about a decision that the human
resources department had made that he believed was out of compliance
with the Federal Equal Pay Act. The office assistant, Mary, stated, “Beth will
not be in the office until next week.” Phil then scheduled a telephone
conference with Beth for the following week. He asked Mary, “Will my
telephone conference with Beth remain confidential?” Mary said, “Most
certainly. Our office is here for you. Everything in our office is confidential.”
The following week Phil called Beth to discuss his concern that certain
professionals were getting paid more for performing the same work that he
was. He described the specifics of his concern. Beth asked, “Is it OK for me
to reveal your name to human resources so I can obtain the necessary
records that I would need from them to see if you are being paid equally to
others for the same work?” Phil agreed to Beth’s request. During his
discussion with Beth, Phil discussed several other corporate leadership
concerns with her and asked that his conversations remain confidential.
Beth replied, “If you wanted confidentiality, then you should have asked for it
before speaking to me.” Phil replied, “Confidentiality was promised prior to
our discussion, and I am surprised at your response.” Beth replied, “Well,
you are wrong.”
Corporate negligence is a doctrine under which the hospital is liable if it
fails to uphold the proper standard of care owed the patient, which is to
ensure the patient’s safety and well-being while at the hospital. This theory
of liability creates a non-delegable duty which the hospital owes directly to
a patient. Therefore, an injured party does not have to rely on and establish
the negligence of a third party.
Corporate negligence occurs when a healthcare corporation fails to perform
the duties it owes directly to a patient or to anyone else to whom a duty may
extend. If such a duty is breached and a patient is injured as a result of that
breach, the organization can be held culpable under the theory of corporate
negligence.
Hospitals once enjoyed complete tort immunity as charitable institutions.
However, as hospitals evolved into more sophisticated corporate entities that
expected fees for their services, their tort immunity receded. Courts first
recognized that hospitals could be held liable for the negligence of their
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employees under the theory of respondeat superior. Liability was later
extended for nonemployees who acted as a hospital’s ostensible agents. In
Thompson v. Nason Hospital, the evolution continued. The Pennsylvania
court recognized that hospitals are more than mere conduits through which
healthcare professionals are brought into contact with patients. Hospitals owe
some nondelegable duties directly to their patients, independent of the
negligence of their employees or ostensible agents, such as a duty to do the
following:
Use reasonable care in the maintenance of safe facilities and
equipment.
Select and retain competent staff.
Appoint competent physicians and other healthcare professionals to
the medical staff.
Oversee all persons who practice medicine within the organization.
Formulate, adopt, and enforce rules and policies to ensure quality
care.
Darling—A Benchmark Case
A benchmark case in the healthcare field that has had a major impact on the
liability of healthcare organizations was decided in 1965 in Darling v.
Charleston Community Memorial Hospital. The court enunciated a corporate
negligence doctrine under which hospitals have a duty to provide an
adequately trained medical and nursing staff. A hospital is responsible, in
conjunction with its medical staff, for establishing policies and procedures for
monitoring the quality of medicine practiced within the hospital.
The Darling case involved an 18-year-old college football player who was
preparing for a career as a teacher and coach. The patient, a defensive
halfback for his college football team, was injured during a play. He was
rushed to the emergency department of a small, accredited community
hospital where the only physician on emergency duty that day was Dr.
Alexander, a general practitioner. Alexander had not treated a major leg
fracture in 3 years.
The physician examined the patient and ordered an X-ray that revealed that
the tibia and fibula of the right leg had been fractured. The physician reduced
the fracture and applied a plaster cast from a point 3 or 4 inches below the
groin to the toes. Shortly after the cast had been applied, the patient began to
complain continually of pain. The physician split the cast and continued to visit
the patient frequently while the patient remained in the hospital. Not thinking it
was necessary, the emergency department physician did not call in any
specialists for consultation.
After 2 weeks, the student was transferred to a larger hospital and placed
under the care of an orthopedic surgeon. The specialist found a considerable
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amount of dead tissue in the fractured leg. During a period of 2 months, the
specialist removed increasing amounts of tissue in a futile attempt to save the
leg until it became necessary to amputate the leg 8 inches below the knee.
The student’s father did not agree to a settlement and filed suit against the
emergency department physician and the hospital. Although the physician
later settled out of court for $40,000, the case continued against the hospital.
The documentary evidence relied on to establish the standard of care included
the rules and regulations of the Illinois Department of Public Health under the
Hospital Licensing Act; the standards for hospital accreditation, today known
as The Joint Commission; and the bylaws, rules, and regulations of Charleston
Hospital. These documents were admitted into evidence without objection. No
specific evidence was offered that the hospital failed to conform to the usual
and customary practices of hospitals in the community.
The trial court instructed the jury to consider those documents, along with all
other evidence, in determining the hospital’s liability. Under the circumstances
in which the case reached the Illinois Supreme Court, it was held that the
verdict against the hospital should be sustained if the evidence supported the
verdict on any one or more of the 20 allegations of negligence. Allegations
asserted that the hospital was negligent in its failure to: (1) provide a sufficient
number of trained nurses for bedside care—in this case, nurses who were
capable of recognizing the progressive gangrenous condition of the plaintiff’s
right leg; and (2) failure of its nurses to bring the patient’s condition to the
attention of the administration and staff so that adequate consultation could be
secured.
Although these generalities provided the jury with no practical guidance for
determining what constitutes reasonable care, they were considered relevant
to aid the jury in deciding what was feasible and what the hospital knew or
should have known concerning its responsibilities for patient care.
Evidence relating to the hospital’s failure to review Alexander’s work, to
require consultation or examination by specialists, and to require proper
nursing care was found to be sufficient to support a verdict for the patient.
Judgment was eventually returned against the hospital in the amount of
$100,000. The Illinois Supreme Court held that the hospital could not limit its
liability as a charitable corporation to the amount of its liability insurance.
[T]he doctrine of charitable immunity can no longer stand . . . a doctrine
which limits the liability of charitable corporations to the amount of liability
insurance that they see fit to carry permits them to determine whether or
not they will be liable for their torts and the amount of that liability, if any.
In effect, the hospital was liable as a corporate entity for the negligent acts of
its employees and physicians. Among other things, the Darling case
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demonstrates the importance of the governing body’s duty to establish a
mechanism for the evaluation, counseling, and, when necessary, taking action
against those physicians who pose an unreasonable risk of harm to patients.
Physician review and monitoring is best accomplished through peer review.
Most states provide statutory protection from liability for peer review activities
conducted in a reasonable manner without malice.
Corporate Officer/Director
An officer or a director of a corporation is not personally liable for the torts of
corporate employees. To incur liability, the officer or the director ordinarily
must be shown to have in some way authorized, directed, or participated in a
tortious act. The administrator of the estate of the deceased in Hunt v.
Rabon brought a malpractice action against hospital trustees and others for
the wrongful death of the decedent during an operation at the hospital. A
contractor had incorrectly crossed the oxygen and nitrous oxide lines of a
newly installed medical gas system leading to the operating room. The
trustees filed a demurrer—a pleading claiming that the facts of the case were
not sufficient for an action against them individually as trustees. The lower
court sustained the demurrer, and the plaintiff appealed. On appeal, the South
Carolina Supreme Court held that the allegations presented were insufficient
to hold the trustees liable for the wrongs alleged.
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▸ DOCTRINE OF RESPONDEAT SUPERIOR
Respondeat superior (“let the master respond”) is a legal doctrine holding
employers liable, in certain cases, for the wrongful acts of their agents
(employees). This doctrine also has been referred to as vicarious liability,
whereby an employer is answerable for the torts committed by employees. In
the healthcare setting, an organization, for example, is liable for the negligent
acts of its employees, even though there has been no wrongful conduct on the
part of the organization. “Hospitals are vicariously liable for the negligence of
an independent contractor emergency-room physician where the patient
enters the emergency room seeking treatment from the hospital rather than a
specific physician of the patient’s own choosing”
For liability to be imputed to the employer, both of the following statements
must be true:
1. A master–servant relationship must exist between the employer and
the employee.
2. The wrongful act of the employee must have occurred within the scope
of his or her employment.
The question of liability frequently rests on whether providers treating a patient
are independent agents (responsible for their own acts) or employees of the
organization. The answer to this depends on whether the organization can
exercise control over the particular act that was the proximate cause of the
injury. The basic rationale for imposing liability on an employer developed
because of the employer’s right to control the physical acts of its employees. It
is not necessary that the employer actually exercise control, only that it
possesses the right, power, or authority to do so.
When filing a lawsuit, the plaintiff’s attorney generally names both the
employer and employee. This occurs because the employer is generally in a
better financial condition to cover the judgment. The employer is not without
remedy if liability has been imposed against the organization as a result of an
employee’s negligent act. The employer, if sued, may seek indemnification
(i.e., compensation for the financial loss caused by the employee’s negligent
act) from the employee.
Independent Contractor
An independent contractor relationship is established when the principal has
no right of control over the manner in which the agent’s work is to be
performed. The independent contractor, therefore, is responsible for his or her
own negligent acts. However, some cases indicate that an organization may
be held liable for an independent contractor’s negligence. For example, in
Mehlman v. Powell, the court held that a hospital could be found vicariously
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liable for the negligence of an emergency department physician who was not a
hospital employee but who worked in the emergency department in the
capacity of an independent contractor. The court reasoned that the hospital
maintained control over billing procedures, maintained an emergency
department in the main hospital, and represented to the patient that the
members of the emergency department staff were its employees, which may
have caused the patient to rely on the skill and competence of the staff.
In another case, a hospital was found vicariously liable for the negligent acts of
independently contracted emergency department physicians. In Schiavone v.
Victory Mem. Hosp., the decedent was transported to the hospital
emergency department by ambulance. “. . . the plaintiff’s decedent was taken
by ambulance to the Victory Memorial Hospital . . . emergency room
complaining of a burning sensation in the chest, belching, and pain in both
arms. There, she was examined and treated by an emergency-room physician
who rendered a diagnosis of gastritis and discharged her. The decedent died
approximately 5 days later, allegedly of a myocardial infarction.” A suit was
filed against the hospital. The New York Supreme Court, Appellate Division,
ruled that the patient sought emergency treatment from the hospital, not from
any specific physician of the patient’s own choosing. Although the hospital
could be vicariously liable for the alleged malpractice of the appellant even
though he was an independent contractor with the hospital at the time of the
occurrence, the cause of action was not filed on a timely basis against the
hospital.
The doctrine of respondeat superior may impose liability on an organization for
a nurse’s acts or omissions that result in injury to a patient. Whether such
liability attaches depends on whether the conduct of the nurse was wrongful
and whether the nurse was subject to the control of the organization at the
time the act in question was performed.
INDEPENDENT CONTRACTOR NEGLIGENT
Citation: Hoffman v. Moore Reg’l Hosp., Inc., 441 S.E.2d 567 (N.C. Ct. App.
1994)
Facts
Hoffman was admitted to the hospital with an order for a renal arteriogram.
After her admission, Hoffman was presented with a consent form for the
procedure. The consent listed five radiologists on the form but did not
specify which radiologist would perform the procedure. The list of
radiologists was composed of members of the Pinehurst radiology group,
which determined which radiologist would cover the hospital each day. Dr.
Lina was assigned to perform Hoffman’s procedure. Following the renal
arteriogram, Lina determined that an angioplasty was necessary. Because
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of complications during the procedure, Hoffman had to be transferred to
University Medical Center. Her condition deteriorated during the following
year and she eventually died. Mr. Hoffman then sought to hold the hospital
liable for the negligence of the radiologist under the theory of respondeat
superior. The trial court dismissed the claim that the hospital was liable
under the theory of respondeat superior.
Issue
Was the hospital liable for the malpractice of Lina under the theory of
respondeat superior?
Holding
The North Carolina Court of Appeals held that the hospital was not liable for
the negligence of Lina under the theory of respondeat superior.
Reason
The court of appeals held that Lina was not an employee of the hospital. He
was not subject to supervision or control by the hospital. There was no
evidence that Hoffman would have sought treatment elsewhere if she had
known for a fact that Lina was not an employee.
Determination of whether a nurse practitioner’s conduct was wrongful in a
given situation depends on the standard of conduct to which the nurse
practitioner is expected to adhere. In liability deliberations, the nurse
practitioner who is subject to the control of the organization at the time of the
negligent conduct is considered an employee and not a borrowed servant of
the organization.
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▸ GOVERNING BODY RESPONSIBILITIES
Along with the corporate authority that is granted to the governing body, duties
are attached to its individual members. These responsibilities are considered
duties because they are imposed by law and can be enforced in legal
proceedings. Governing body members are considered by law to have the
highest measure of accountability. They have a fiduciary duty that requires
acting primarily for the benefit of the corporation. The general duties of a
governing body are both implied and express. Failure of a governing body to
perform its duties may constitute mismanagement to such a degree that the
appointment of a receiver to manage the affairs of the corporation may be
warranted.
The duty to supervise and manage is as applicable to the trustees as it is to
the managers of any other business corporation. In both instances, there is a
duty to act as a reasonably prudent person would act under similar
circumstances. The governing body must act prudently in administering the
affairs of the organization and must exercise its powers in good faith.
Appointment of a Chief Executive Officer
The governing body is responsible for appointing a CEO to act as its agent in
the management of the organization. The CEO is responsible for the day-to-
day operations of the organization. The CEO plans, directs, and coordinates
the operational activities of the organization. The CEO must possess the
competence and the character necessary to maintain satisfactory standards of
patient care within the organization. The responsibilities and authority of the
CEO should be expressed in an appropriate job description, as well as in any
formal agreement or contract that the organization has with the CEO. Some
state health codes describe the responsibilities of administrators in broad
terms. They generally provide that the CEO/administrator shall be responsible
for the overall management of the organization; enforcement of any applicable
federal, state, and local regulations, as well as the organization’s bylaws,
policies, and procedures; appointment of, with the approval of the governing
body, a qualified medical director; liaison between the governing body and
medical staff; and appointment of an administrative supervisor to act during
the CEO’s absence from the organization.
The general duty of a governing body is to exercise due care and diligence in
supervising and managing the organization. This duty does not cease with the
selection of a CEO. A governing body can be liable if the level of patient care
becomes inadequate because of the governing body’s failure to properly
supervise the management of the organization. With these responsibilities in
mind, the governing body must closely monitor the effectiveness of the
organization’s leadership, beginning with the CEO. The Board should require a
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self-evaluation by the CEO on an annual basis, after which the board also
reevaluates the CEO.
Hospital Administrator Licensure
There are no formal licensing requirements for hospital administrators,
although there are common educational career paths to follow when seeking
executive positions in hospitals. A master’s degree in health services
administration or a related field is often required. “Hospital administrators may
also earn voluntary professional certification.” The American College of
Healthcare Executives is the premiere professional organization offering a
certification process.
The American College of Healthcare Executives is an international
professional society of 40,000 healthcare executives who lead hospitals,
healthcare systems and other healthcare organizations. ACHE’s mission is
to advance its members and healthcare management excellence. ACHE
offers its prestigious FACHE credential, signifying board certification in
healthcare management.
Nursing Home Administrator Licensure
To comply with federal requirements, the various states have incorporated
licensing requirements in their regulations. Administrators are licensed under
the laws of their individual states. Statutes generally provide that the
administrator of a nursing facility be licensed in accordance with state law.
Alaska statutes, for example, require licensing of nursing home administrators.
Sec. 08.70.080. License required. Only a licensed nursing home
administrator may manage, supervise, or be generally in charge of a
nursing home. The care provided by a nursing home or a licensed hospital
providing nursing home care through the use of skilled nursing beds or
intermediate care beds shall be supervised by a licensed nursing home
administrator or by a person exempted from licensure requirements under
this section.
Licensure requirements include higher education, such as in New York State,
which provides that “An applicant shall be deemed in fulfillment of Licensure
Qualification 3 upon receipt of a baccalaureate or higher level degree from an
accredited educational institution including, or supplemented by, 15 credit
hours of required coursework in long-term care/health care, gerontology and
personnel management.” In Massachusetts, 245 CMR 2.00 governs the
licensure and practice of nursing home administrators and establishes the
standards of conduct for the practice of nursing home administrators that
include a written examination.
The National Association of Long Term Care Administrator Boards (NAB)
offers the nursing home administrator examination. The NAB in July 2017
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“will transition its examinations to a new structure: examinees will need to pass
a 100-item ‘core of knowledge’ section and a 50-item line of service section.”
The nursing home administrator exam “has been developed and administered
by NAB for decades and is taken by over 2,000 candidates across the nation
annually.”
States that require administrators to be licensed provide penalties ranging
from fines to imprisonment for those administrators functioning without a
license. The Alaska statutes cited earlier provide that “A person convicted of
violating a provision of this chapter is guilty of a class B misdemeanor.”
A $5,000 fine was imposed on a nursing facility for operating without a
licensed administrator for 54 days in Magnolias Nursing and Convalescent
Center v. Department of Health and Rehabilitation Services. The statute
prohibiting operation of a nursing home without a licensed administrator was
not considered vague, ambiguous, or unconstitutional.
Responsibility
The CEO is responsible for the supervision of the administrative staff and
managers who assist in the daily operations of the organization. The CEO
derives authority from the owner or governing body. The CEO of an
organization owned and operated by a governmental agency may be an
appointed public official. The CEO is responsible to lead and oversee the
implementation of the company’s long- and short-term plans in accordance
with its strategy.
The CEO must implement the policies of the governing body, as well as
interpret policies. Appropriate action must be taken where noncompliance with
rules and regulations occurs. The CEO is responsible for making periodic
reports to the governing body regarding policy implementation.
There may be occasions when the CEO believes that following a direction of
the governing body may create a danger to the patients or others. If the CEO
knows or should have known, as a reasonably prudent person, of a danger or
unreasonable risk or harm that will be created by certain directed activity but
nevertheless proceeds as directed, he or she could become personally liable
for any resulting injury. The CEO, therefore, must take appropriate steps to
notify the governing body of any policies that create dangers or unreasonable
risks. Although the CEO cannot assume the functions of the professional staff,
he or she must ensure that proper admission and discharge policies and
procedures are formulated and carried out. The CEO must cooperate with the
professional staff in maintaining satisfactory standards of medical care. The
CEO is responsible to keep current as to regulatory changes that affect
organizational operations. Periodic meetings should be conducted to inform
the staff of regulatory changes affecting their duties and responsibilities. The
CEO should designate a representative for administrative coverage during
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those hours he or she is absent from the organization. This individual should
be capable of dealing with administrative matters and be able to contact the
CEO when major problems arise.
Tort Liability
The wrongful injury to another by the CEO in the performance of his or her
duties can result in the CEO being liable to the one injured. Because the CEO
is subject to the control of the organization, the organization also may be liable
for the torts of the CEO that occur within the scope of his or her employment.
When performing the duties that he or she was employed to perform, the CEO
works for the benefit of the organization and not as an individual. Because the
organization gains from the work performed by its employees, the law renders
the organization legally responsible for the acts of employees while performing
the work of the organization.
Liability for the Acts of Others
The CEO is not liable for the negligent acts of other employees as long as he
or she personally took no part in the commission of the negligent act and was
not negligent in selecting or directing the person committing the injury.
However, under the doctrine of respondeat superior, a healthcare facility can
be liable for an employee’s negligent acts.
Case Reviews
Over the years, a fair number of cases have dealt with administrators and their
management of healthcare organizations. In general, an administrator
employed for the duration of satisfactory performance has no property right in
the position, as was pointed out in Bleeker v. Dukakis. The administrator of
the Woodland Nursing Home had been hired through an oral agreement under
which his continued employment was contingent upon satisfactory work
performance. “The assistant commissioner determined that Woodland was
being managed improperly and that the appellant should be replaced.” The
administrator’s appointment was considered to be at the will of the employer
even though the nursing facility’s policies provided a procedure for warning
and an opportunity to correct work performance deficiencies.
ANESTHESIA ABUSE AND CEO DILEMMA
Anytown Hospital has an outstanding reputation for surgical services. The
operating room supervisor and a surgical nurse told Bob Wright, the CEO,
that Dr. Flipton, an anesthesiologist, was abusing the use of anesthesia
gases in the hospital’s dental suite. He was reportedly seen by operating
staff testing “laughing gas” by holding a mask against his face for short
periods of time. This scene would be followed by a string of silly, seemingly
meaningless jokes. Bob has repeatedly discussed this matter with the
medical executive committee. The medical executive committee refuses to
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take any action without definitive action by the department chair. Bob
suspects that if he pursues the matter further with the governing board, he
could end up without a job. The governing body is generally unable to
resolve disciplinary actions against a physician without support of the
medical executive committee. Bob knows that if he pursues the matter
further with the governing board, it will more likely result in a disgruntled
board and medical staff. In this case, Bill knew enough to pick his battles,
and this was one he could not win.
Dealing with the legal system can be a harrowing experience, even in those
instances where the administrator is eventually exonerated from either
negligence or criminal activity. Presented here are a few agonizing moments
in the lives of some boards and their administrators.
An administrator’s license was revoked for concealment of the
identities of the facility’s owners in Loren v. Board of Examiners of
Nursing Home Administrators. The court found that the record
contained substantial evidence to support the board’s finding. The
administrator had actively participated in a scheme to divert checks
belonging to the nursing home to undisclosed partners of the home.
The crime of knowingly filing false statements as to the facility’s
ownership with the intent of defrauding the U.S. government and the
state of New York involved moral turpitude and subjected the
administrator to disciplinary action.
An administrator’s plea to misdemeanor counts for mismanagement
was considered a proper basis for suspending his nursing home
license for 1 year.
A nursing facility’s exclusion from a Medicaid rate incentive program
was considered rationally related to the encouragement of superior
health care after the administrator was indicted for accepting excessive
payments from the residents’ relatives.
Although cases of alleged wrongdoing do not always end in a finding
for the plaintiff, going through the ordeal is, at best, a most
uncomfortable experience for the defendant. The court in State v.
Serebin held that the evidence of inadequate staffing and diet was
found to be insufficient to support homicide charges against the
administrator when the resident left the facility and died of exposure.
Leadership is responsible for leading, and that includes accepting
responsibility for addressing those areas in the organization that need
improvement, as noted in the following reality check.
Medical Staff Appointments and Privileging
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The governing body is responsible for ensuring the medical staff bylaws, rules,
and regulations include application requirements for clinical privileges and
admission to the medical staff; a process for granting emergency staff
privileges; requirements for medical staff consultations; a peer review process;
a process for auditing medical records; a process for addressing disruptive
physicians and substance abuse; and a process for instituting corrective action
(disciplinary actions can take the form of a letter of reprimand, suspension, or
termination of privileges).
CEO CHALLENGES BOARD-APPOINTED CONSULTANTS
The hospital’s board of directors had hired a consulting firm to review the
quality of patient care being delivered at the hospital where Nathan was
employed as the CEO. Following the 2-week review, the consultants
presented Nathan and his leadership group with a verbal report. During the
consultant’s exit review, Nathan appeared somewhat agitated by the report
as he sat restlessly in his seat. When the written preliminary report listing
the hospital’s deficiencies was presented to Nathan following the verbal
report, he abruptly stood up and said, “This is not just about the hospital!
This is about my job!” Nathan then angrily left the room, followed by his
managers, with the exception of two. They never looked back—no
goodbyes, just angry and disgruntled.
The governing body has a responsibility to appoint competent members to its
professional staff. Failure of the governing body to properly screen a medical
staff applicant’s credentials can lead to liability for injuries suffered by patients
as a result of that omission, as was the case in Johnson v. Misericordia
Community Hospital, where the patient brought a malpractice action against
the hospital and its liability insurer for alleged negligence in granting
orthopedic privileges to a physician who performed an operation to remove a
pin fragment from the patient’s hip. The Wisconsin Court of Appeals found the
hospital negligent for failing to scrutinize the physician’s credentials before
approving his application for orthopedic privileges. The hospital failed to
adhere to procedures established under both its own bylaws and state statute.
The measure of quality and the degree of quality control exercised in a
hospital are the direct responsibilities of the medical staff. Hospital supervision
of the manner of appointment of physicians to its staff is mandatory, not
optional. On appeal by the hospital, the Wisconsin Supreme Court affirmed the
appellate court’s decision, finding that if the hospital had exercised ordinary
care, it would not have appointed the physician to the medical staff.
Ensure Medical Staff Competency
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Healthcare organizations have a responsibility to ensure the competency of
their medical staff and to evaluate the quality of medical treatment rendered on
their premises. The California Court of Appeals in Elam v. College Park
Hospital reviewed a question as to “whether a hospital is liable to a patient
under the doctrine of corporate negligence for negligent conduct of
independent physicians and surgeons who, as members of the hospital staff,
avail themselves of the hospital facilities, but who are neither employees nor
agents of the hospital.” The Court of Appeals upheld that a hospital is liable
to a patient under the doctrine of corporate negligence for the negligent
conduct of independent physicians and surgeons who are neither employees
nor agents of the hospital.
In Dykema v. Carolina Emergency Physicians, P.C., Dykema began having
respiratory symptoms, cough, and shortness of breath for which Dr. King, his
family physician, treated him. He sought a second opinion from the Center for
Family Medicine (“Center”), part of the Greenville Hospital System. Dykema
went to the Center with complaints of cough, shortness of breath, and
tightness in the chest. A third-year medical student, Dr. Gemas, and Dr.
Pearman, an attending faculty member, saw Dykema that day. Pearman
prescribed antibiotics for persistent bronchitis and told Dykema to return in 1
week or sooner if his condition worsened.
Early Sunday morning, February 6, Mrs. Dykema called the Center concerning
her husband’s worsening condition and was advised to take him to the hospital
the next day. She brought him to the hospital at approximately 1:00 PM on
February 6, and Dr. Connell, a medical resident and employee of Greenville
Hospital System, saw him. Connell diagnosed viral bronchitis and advised
Dykema to continue his antibiotics and keep his follow-up appointment at the
center on February 8. The next morning, February 7, Mrs. Dykema called the
Center and spoke with a receptionist and requested that her husband be seen
immediately because of his worsening condition. She was told there were no
earlier appointments available and that she should keep the appointment on
February 8. Dykema died on the morning of February 8, prior to his scheduled
appointment. The cause of death was a progressive showering of pulmonary
emboli, pieces of which moved to his lungs and caused a fatal blockage. The
South Carolina Supreme Court held the defendant hospital was liable for the
full $2 million in actual damages and reinstated the $500,000 award in punitive
damages and finding that “the trial court’s ruling that the statutory caps are
inapplicable to this case is affirmed.”
Discipline Abusive Behavior
It is the responsibility of the CEO, medical board, and governing body to
ensure that caregivers who engage in verbal or abusive behavior are
appropriately disciplined. Accrediting bodies that claim a zero tolerance for
such behavior must support surveyors who report inappropriate behavior.
Furthermore, to punish an individual for reporting such behavior and abuse is
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tantamount to being complicit with allowing inappropriate behavior to continue.
The healthcare industry has a long history of making excuses for allowing
abusive behavior. Failure to effectively address such behavior cannot be
tolerated in a civil society.
Disruptive physicians can have a negative impact on an organization’s staff
and ultimately affect the quality of patient care, as noted in the following reality
check.
Implementing the appropriate policies and procedures to address conflict
resolution are necessary to ensure a safe and functional environment for both
patients and employees. Criteria other than academic credentials (e.g., a
physician’s ability to work with others) must be considered before granting an
applicant privileges on the hospital’s professional staff. This reality check
illustrates how disruptive physician behavior can be harmful to patients, staff,
and hospital surveyors who are onsite to examine the hospital’s quality of
care.
FAULTY CREDENTIALING PROCESS
Citation: Candler Gen. Hosp., Inc. v. Persaud, 442 S.E.2d 775 (Ga. Ct.
App. 1994)
Facts
On or about February 15, 1990, the patient in this case was referred to Dr.
Freeman for consultation and treatment of gallstones. Freeman
recommended that the patient undergo a laparoscopic laser
cholecystectomy procedure.
On February 16, 1990, Freeman requested and was granted temporary
privileges to perform the procedure. The privileges were granted based on a
certificate he had received after completing a laparoscopic laser
cholecystectomy workshop, which he took on February 10, 1990. Freeman
performed the cholecystectomy on February 20, 1990, with the assistance of
Dr. Thomas.
A complaint by the administrator of the patient’s estate, supported by an
expert’s affidavit, alleged that the cholecystectomy was negligently
performed, and as a result, the patient bled to death. The complaint charged
the hospital with negligence in permitting Freeman to perform the procedure
on the decedent without having instituted any standards, training
requirements, or “protocols,” or otherwise instituted any method for judging
the qualifications of a surgeon to perform the procedure. The complaint also
alleged that the hospital knew or reasonably should have known that it did
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not have a credentialing process that could have assured the hospital of the
physician’s education, training, and ability to perform the procedure.
The trial court denied the hospital’s motion for summary judgment, finding
that the plaintiffs’ evidence was sufficient to raise a question of fact
regarding whether surgical privileges should have been issued by the
hospital to Freeman. The hospital appealed.
Issue
Was there a material issue of fact as to whether the hospital was negligent
in granting the specific privileges requested by Freeman?
Holding
The Georgia Court of Appeals held that there was a material issue of fact as
to whether the hospital was negligent in granting the specific privileges
requested, thus precluding summary judgment.
Reason
The court found that a hospital has a direct and independent responsibility to
its patients to take reasonable steps to ensure that physicians using hospital
facilities are qualified for the privileges granted. The hospital owed a duty to
the plaintiffs’ decedent to act in good faith and with reasonable care to
ensure that the surgeon was qualified to practice the procedure that he was
granted privileges to perform.
Privileges Denied: Inability to Work with Others
The court, in Ladenheim v. Union County Hospital District, held that the
physician’s inability to work with other members of the staff was sufficient
grounds to deny him staff privileges. The physician’s record was replete with
evidence of his inability to work effectively with other members of the hospital
staff. As stated in Huffaker v. Bailey, most courts have found that the ability
to work smoothly with others is reasonably related to the objective of ensuring
patient welfare. The conclusion seems justified because healthcare
professionals frequently are required to work together or in teams. A staff
member who, because of personality characteristics or other problems, is
incapable of getting along with others could severely hinder the effective
treatment of patients.
In another case, the court, in Pick v. Santa Ana-Tustin Community Hospital,
held that the petitioner’s demonstrated lack of ability to work with others in the
hospital setting was sufficient to support the denial of his application for
admission to the medical staff. There was evidence that the petitioner
presented a real and substantial danger to patients treated by him and that the
patients might receive less than a high quality of medical care.
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THE ANGRY DOCTOR
Dr. X came into my outer office standing in the doorway complaining that
there were no beds available in the intensive care unit (ICU) for his patient
whom he said was in critical condition.
I could hear his voice from my inner office. My secretary called me through
the intercom and said “Dr. X is out here and says he wants to see you now.
He wants you to discharge a patient from the ICU to a different nursing unit
so he can move his patient in to an ICU bed.”
I walked out of my office into the reception area. Before I could speak, Dr. X
began an explosive tirade as to how his patient needed to be in the ICU
more than the other patients already admitted. Dr. X said, “I want a patient
moved from ICU to a different patient care unit. My patient is in critical
condition.” I suggested he calm down and stated that the priority for
admission to the unit must to be reviewed with Alex, who is the director of
the ICU. Dr. X became more angry and said, “Step outside and you and I
will handle this.” I then instructed my secretary to call security. She was so
stunned that she sat there in a daze and failed to call security. Turning to Dr.
X, I said, “Dr. X, it is time for you to leave and I will speak to Alex and he will
make the appropriate accommodations for your patient. Alex will consult
with you.” He then stormed out of my office as Stu, the president of the
medical staff walked in smiling and chuckling, “I see you met Dr. X. I heard
him offer to go out to the parking lot with you. Lucky you didn’t go with him.
He just got back from Vietnam. I think he was used to being in charge and is
having some difficulty readjusting to civilian life.”
Dr. X was sent a letter of reprimand. There was no reply and thereafter he
was seldom seen in the hospital.
—CEO
ANGER MANAGEMENT COURSES ARE A NEW TOOL FOR
DEALING WITH DOCTORS’ RAGE IN THE O.R.
For generations, bad behavior by doctors has been explained away as an
inevitable product of stress or tacitly accepted by administrators. . . . but that
time-honored tolerance is waning . . . as a result of regulations imposed in
2009 by The Joint Commission, the group that accredits hospitals. These
rules require hospitals to institute procedures for dealing with disruptive
behavior, which can take passive forms such as refusing to answer pages or
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attend meetings. The commission has called for a “zero tolerance”
approach.
—Sandra G. Boodman, The Washington Post, March 4, 2013
Suspension Privileges
A physician who challenges a board’s decision to suspend his medical staff
privileges will find that a court will generally uphold the board’s decision in a
legal action. As was the case in Bouquett v. St. Elizabeth’s Corp., where an
ophthalmologist brought an action to challenge suspension of his medical staff
privileges after a felony conviction in a federal court for conspiracy to distribute
Dilaudid. He later was sentenced to 5 years of incarceration. On appeal, the
Ohio Supreme Court held that the conviction of the ophthalmologist justified
summary suspension of the physician’s staff privileges pursuant to a hospital
bylaw permitting summary suspension in the best interest of patient care in the
hospital. A governing body has broad discretion in determining who shall be
granted medical staff privileges. Unless an organization has been arbitrary
and/or capricious or has abused its discretion, the courts generally will not
interfere with a board’s decision to suspend physicians convicted on drug-
related felony charges.
Enforce Standards of Professional Ethics
Meyers applied for medical staff privileges. Shortly thereafter, the Credentials
Committee, the Medical Executive Committee (MEC), and the board of the
hospital approved Meyers for appointment to the medical staff. All initial
appointments to the medical staff were provisional for 1 year.
Within a year of Meyers’s initial appointment, the Credentials Committee
began to evaluate Meyers for advancement to active staff. The Credentials
Committee was concerned about Meyers’s history: moving from hospital to
hospital after disputes with hospital staff; his failure to fully, and in a timely
manner, disclose disciplinary and corrective action taken against him in
another state; and the quality of his patient care. The MEC voted to accept the
Credentials Committee decision to revoke Meyers’s staff privileges. The MEC
then recommended to the board the revocation of Meyers’s privileges.
DISRUPTIVE PHYSICIAN
Stephen, a hospital administrative consultant, selected a complex case on
the 10th floor orthopedic unit for review. Stephen reviewed the patient’s
record. Following several questions about the patient’s care, a staff nurse
asked, “Would you like Dr. Williams, the orthopedist, to discuss this case
with you?” Stephen said, “Sure, that will be fine.” Dr. Williams soon arrived
and appeared a bit disturbed that he had been summoned. Stephen
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introduced himself and said that he just had a few questions he would like to
ask.
Stephen asked Dr. Williams which diagnoses the patient related to the
organization at the time of admission and which diagnoses were made
during the course of the patient’s hospitalization. Dr. Williams said, “I am
treating the patient for her orthopedic problems, not all of these other
diagnoses.” Following a few questions with the physician, Stephen asked to
interview the patient. Dr. Williams agreed, “OK.” Stephen asked, “Could you
please ask the patient if I could speak with her?” Dr. Williams said, “That’s
not necessary.” Dr. Williams and Stephen walked to the entrance of the
patient’s room. Stephen waited outside the patient’s room. Dr. Williams
walked into the patient’s room, returned to the hallway, and said, “The
patient was sleeping, but I woke her up.”
Upon entry to the patient’s room, sensing that Dr. Williams had forgotten
Stephen’s name, Stephen introduced himself to the patient. Dr. Williams
asked Stephen if he wanted him to leave the room. Stephen replied, “It’s
OK. I only have a few questions. You can stay if you would like.”
The patient said, “Oh, I know what you do. My husband is a nurse.” Stephen
smiled and asked about her care. She said that it was excellent. She said
the food could be better but she was pleased with her overall care. She
talked about her hip fracture and back problems. Dr. Williams, interrupting
the conversation, proceeded to tell the patient about her orthopedic issues.
He described in explicit and frightening detail how the discs in her back were
collapsing and how things could progress and how she could eventually be
confined to a wheelchair.
Following his brief conversation with the patient, Stephen said, “You will be
all OK.” The patient smiled and said, “Thank you.” Upon leaving the room,
Dr. Williams asked, “What kind of doctor are you?” Stephen replied, “I am
not a doctor; I am an administrative consultant.” Not having listened to
Stephen’s answer, Dr. Williams said in a threatening manner, just outside
the patient’s room, “Don’t you ever tell one of my patients they are going to
be OK!” Stephen said calmly, “I was not speaking clinically; I was relating a
compassionate goodbye to the patient.” Stephen then extended his hand to
Dr. Williams, saying, “Thank you for your time.” Dr. Williams shook
Stephen’s hand and then quickly walked away down the corridor. Stephen
later learned that this was not the first time that Dr. Williams had had
behavioral issues with both patients and with the nursing staff. Questions
arise as to: (1) what information should Stephen share with the corporate
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leaders regarding Dr. Williams’ disruptive behavior on the patient care unit;
and, (2) what action, if any, should the hospital take.
Dr. Williams eventually apologized to Stephen several months later for his
conduct, stating that he thought Stephen was a physician and believed him
to be out of place for saying that his patient would be OK.
The board notified Meyers that a three-member board committee would
conduct an independent review. This committee discussed concerns about
Meyers’s behavior and his inability to get along with others, in addition to
questions about his surgical technique. The committee questioned Meyers
about several incident reports concerning disruptive behavior, his history of
problems at other hospitals, his failure to complete medical records, his
hostility toward the operating room staff, and his failure to provide appropriate
coverage for patients while he was unavailable. Meyers did acknowledge that
he had a personality problem.
The three-member committee of the board voted to deny Meyers’s
appointment to active staff. The reasons cited for the committee’s decision
were Meyers’s failure to satisfy requirements that he abide by the ethics of the
profession, work cooperatively with others, complete medical records in a
timely manner, and abide by hospital standards. The committee outlined
Meyers’s pattern of rude, abusive, and disruptive behavior that included, but
was not limited to, temper tantrums, attempted interference with the right of an
attending physician to refer a patient to the surgeon of his choice or to transfer
the patient, condescending remarks toward women, refusal to speak to a
member of his surgical team during surgical procedures, and several
instances of throwing a scalpel during surgery. The committee informed
Meyers that this behavior could have an adverse effect on the quality of
patient care. As for his failure to complete timely medical records, the
committee stated that delinquent records can place patients at risk.
The committee issued its recommendation that Meyers not be reappointed to
the hospital’s staff because of his failure to meet ethical standards and his
inability to work cooperatively with others. In May, the board adopted and
affirmed the Fair Hearing Committee’s recommendation. Ultimately, after
further appeals, the board revoked Meyers’s privileges.
Meyers brought suit, seeking a permanent injunction to require the hospital to
reinstate him to staff. The court denied Meyers’s motion. Quality patient care
requires that physicians possess at least a reasonable ability to work with
others. The board was concerned that Meyers’s behavior would continue
resulting in a patient injury.
Duty to Be Financially Scrupulous
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Healthcare organizations searching for alternate sources of income must do
so scrupulously and not find themselves in what could be construed as
questionable corporate activities. Smith v. van Gorkum involved a board of
directors that authorized the sale of its company through a cash-out merger for
a tendered price per share nearly 50% over the market price. Although that
might sound like a good deal, the governing body did not make any inquiry to
determine whether it was the best deal available. In fact, it made no decision
during a hastily arranged, brief meeting in which it relied solely on the CEO’s
report regarding the desirability of the move. The Delaware Supreme Court
held that the board’s decision to approve a proposed cash-out merger was not
a product of informed business judgment and that it acted in a grossly
negligent manner in approving amendments to the merger proposal.
A triable claim of illegal fee splitting was stated in Hauptman v. Grand Manor
Health Related Facility, Inc., by the allegations of a psychiatrist that a
nursing home barred him from continuing to treat its residents unless he joined
a professional corporation, the members of which included owners of the
nursing home. Under the proposed agreement, the nursing home would retain
20% of the fees collected on his behalf. Although Section 6509(a) of the New
York Education Law does not prohibit members of a professional corporation
from pooling fees, the statute did not apply to forced conscription into a
corporation at the price of surrendering a portion of one’s fees unwillingly.
Likewise, Title 8, Section 29.1[b][4] of the New York Compilation of Codes and
Rules expressly forbids a professional corporation from charging a fee for
billing and office expenses based on a percentage of income from a practice.
The psychiatrist’s allegations also showed possible violation of New York
Public Health Law § 2801(b), which prohibited exclusion of a practitioner on
grounds not related to reasonable objectives of the organization.
A California bank, in Lynch v. Redfield Foundation, refused to honor
corporate drafts unless all trustees concurred. They could not agree, and
funds in a noninterest-bearing account continued to grow in principal from
$4,900 to $47,000 over a 5-year period. Although two trustees did try to carry
on corporate functions despite a dissident trustee, their good faith did not
protect them from liability in this case. The money could have been transferred
to at least an interest-bearing account without the third trustee’s signature. The
trustees were held jointly liable to pay to the corporation the statutory rate of
simple interest.
Duty to Require Competitive Bidding
Many states have developed regulations requiring competitive bidding for work
or services commissioned by public organizations. The fundamental purpose
of this requirement is to eliminate or at least reduce the possibility that abuses,
such as fraud, favoritism, improvidence, or extravagance, will intrude into an
organization’s business practices. Contracts made in violation of a statute are
considered illegal and could result in personal liability for board members,
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especially if the members become aware of a fraudulent activity and allow it to
continue. The mere appearance of favoritism toward one contractor over
another could give rise to an unlawful action. For example, a board member’s
pressing the administrator to favor one ambulance transporter over others
because of his or her social acquaintance with the owner is suspect. An
organization’s governing body should avoid even the appearance of
wrongdoing by requiring competitive bidding.
Duty to Avoid Conflicts of Interest
A conflict of interest involves those situations in which a person has
opportunity to promote self-interests that could have a detrimental effect on an
organization with which he or she has a special relationship (e.g., employee,
board member). The potential for conflict of interest exists for individuals at all
levels within an organization. Disclosure of potential conflicts of interest should
be made so that appropriate action may be taken to ensure that such conflict
does not inappropriately influence important organizational and/or healthcare
decisions. Board members, physicians, and employees are required by most
organizations to submit a form disclosing potential conflicts of interest that
might negatively impact the organization’s reputation or financial resources.
Governing body members must refrain from self-dealing and avoid conflict-of-
interest situations. Each board member should submit in writing all outstanding
voting shares (where applicable) or any relationships or transactions in which
the director might or could have a conflict of interest. Membership on the
governing body or its committees should not be used for private gain. Board
members are expected to disclose potential conflicts of interest and withdraw
from the boardroom at the time of voting on such issues. Board members who
suspect a conflict of interest by another board member have a right and a duty
to raise pertinent questions regarding any potential conflict. Conflict of interest
is presumed to exist when a board member or a firm with which he or she is
associated may benefit or lose from the passage of a proposed action.
BOARD FAILS THE COMMUNITY
At a time when many hospitals were on the brink of bankruptcy and
struggling to survive, Brad, the administrator of Hospital A, one of three in a
multihospital system, had a positive bottom line of approximately $6 million.
The hospital was located in an upscale, affluent community. The corporate
directors siphoned off funds from Hospital A for many years to support the
operations and pet capital projects of two of the system’s failing hospitals.
Meanwhile, Hospital A was suffering from lack of supplies and funds for
Hospital A’s own capital projects, leading to a slow deterioration of Hospital
A’s facilities. The physicians and community members, aware of the positive
bottom line, were disturbed that Hospital A’s funds from operations and what
few donations being made were allocated to fund the day-to-day operations
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of the system’s two failing hospitals. As a result, it was difficult to get
community members to donate to their own community hospital. The
community had no trust their donations would remain in the community.
The needs of the hospital continued to suffer as corporate leadership was
expanding nonrevenue-producing projects, relocating corporate offices to
more costly sites, building lavish office suites, adding staff with vague job
descriptions that only served to burden and penalize the revenue-producing
entities, and jeopardizing patient care with their pet projects by deluging
hospital staff with paperwork so they could produce even more paperwork to
justify their own existence. Hospital staff felt that corporate staff had become
an obstacle to the provision of quality patient care. No relief from battlefield
fatigue seemed to be on the horizon.
Brad was able to work with a variety of local community leaders (e.g., a
banker, lawyer, physician, newspaper editor, and real estate agent) to
establish a fundraising board whose mission was to oversee the local
fundraising process and help assure that donations were used for Hospital
A’s needs. Although many of the corporate leaders privately objected to the
concept, the board reluctantly recognized the community fundraising board’s
existence, hoping to make inroads into the pockets of the wealthy. With
halfhearted support by corporate leadership, the death of many of the
board’s founding fathers, and eventual resignation of battle fatigued Brad,
who had developed community trust, the community board slowly faded out
of existence under the leadership of the administrators that followed him.
Brad’s dilemma regarding cash flow to other entities in the corporation was a
decision made on the system’s corporate level. When working in a
multihospital system, the CEO of any one division of the system will face
many agonizing nights about what he can and cannot control. This is but
one of many ethics-driven dilemmas that occur in multihospital systems. The
modern-day CEO understands that allocation of scarce resources is often
politically driven. Thus, the CEO must have both the oral and written skills to
justify to the corporate leadership the funding needed for the functioning of
his division.
Membership on the governing body of a nonprofit organization is deemed a
public service. Neither the court nor the community expects or desires such
public service to be turned to private gain. Thus, the standards imposed on
board members regarding the investment of trust funds, self-dealing
transactions, or personal compensation may be stricter than those for directors
of business corporations.
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The essential rules regarding self-dealing are clear. Generally, a contract
between the organization and a trustee financially interested in the transaction
is voidable by the organization in the event that the interested trustee spoke or
voted in favor of the arrangement or did not disclose fully the material facts
regarding his or her interest. This resolution of the self-dealing problem is
based on the belief that if an interested board member does not participate in
the governing body’s action and does make full disclosure of his or her
interest, the disinterested remaining members of the governing body are able
to protect the organization’s interests. Statutory provisions in some states
specifically forbid self-dealing transactions altogether, irrespective of
disclosure or the fairness of the deal.
Duty to Provide Adequate Insurance
One basic protection for tangible property is adequate insurance against
negligence, fire, and other risks. This duty extends to keeping the physical
plant of the corporation in good repair and appropriating funds for such
purpose when necessary.
It is the duty of the governing body to purchase adequate insurance to cover
the various risks associated with conducting organizational business, and thus
protect the organization’s assets. Organizations face as much risk of losing
their tangible and intangible assets through judgments for negligence as they
do through fires or other disasters. When this is true, the duty to insure against
the risks of fire is as great as the duty to insure against the risks of negligent
conduct.
Criminal Activity Insurance Settlement
Johns Hopkins Hospital agreed to a $190 million settlement as the result of Dr.
Nikita Levy’s secret taping of patients during pelvic examinations. An
investigation was begun, and Dr. Levy was later found dead at home, which
was attributed to suicide. The hospital stated that the settlement would be paid
by insurance. But many legal and ethical questions remain unanswered—for
example, how were Dr. Levy’s activities able to go undetected for so many
years? The “patient’s rights to privacy,” amongst many others, were severely
violated. The pain and suffering will not be relieved by this settlement. It is
difficult to place this case in any particular chapter; however, his chapter
perhaps may be most appropriate, as ultimately, it is the hospital’s
responsibility to be ever vigilant for both negligent and criminal acts that
impact the lives of the patients it serves to heal. Peer review should not merely
be a process for meeting regulatory requirements. Hospital boards should
continuously improve the process and consider the pros and cons of a
profession’s process of self-review.
Duty to Comply with Law
The governing body in general, and its agents (assigned representatives) in
particular, are responsible for compliance with federal, state, and local laws
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regarding the operation of the organization. Depending on the scope of the
wrong committed and the intent of the governing body, failure to comply could
subject board members and/or their agents to civil liability and, in some
instances, to criminal prosecution. The organization and its designated officers
are responsible to address deficiencies identified during inspections by both
governmental and nongovernmental agencies.
CARDIOLOGISTS FLAGGING WOEFUL PATIENT CARE
SAY THEY PAID WITH THEIR JOBS
San Jose, CA—When a California cardiologist and cardiac surgeon went to
their superiors complaining of woeful patient care at their hospital, one had
her job shifted to a satellite outpatient clinic, while the other’s contract was
terminated. Now, as their ensuing lawsuit—naming two additional
cardiologists among the defendants—moves into its next phase, the
plaintiffs have given an exclusive interview to heartwire detailing their
experiences.
• • •
Some of their complaints have already been upheld. For example, the JC—
a not-for-profit organization that accredits over 19,000 health care
organizations in the U.S.—put the SCVMC on “conditional accreditation” for
six months in 2010/2011.
—Lisa Nainggolan, heartwire, January 25, 2012
Failure to comply with applicable statutory regulations can be costly. This was
the case in People v. Casa Blanca Convalescent Homes, in which there was
evidence of numerous and prolonged deficiencies in resident care. The
nursing home’s practice of providing inadequate staffing constituted not only
illegal practice, but also unfair business practice in violation of Section 17200
of the California Business and Professions Code. The trial court was found to
have properly assessed a fine of $2,500 for each of 67 violations, totaling
$167,500, where the evidence showed that the operator of the nursing home
had the financial ability to pay that amount.
Duty to Comply with Accreditation Standards
The governing body is responsible for compliance with applicable standards
promulgated by accrediting bodies. Noncompliance could cause an
organization to lose accreditation, which, in turn, could provide grounds for
third-party reimbursement agencies such as Medicare, to deny payment for
treatment rendered to patients.
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The findings by The Joint Commission surveyors, for example, during
accreditation surveys must be addressed and corrected. Consultative remarks
are often offered during a survey to highlight an area of concern. Suggestions
by surveyors should be addressed as determined to be appropriate by the
organization. They should be regarded as being of considerable importance in
identifying areas needing corrective action, as are the written reports provided
by surveyors at the time of a survey.
Conflicts of Interests
The following news report describes how pervasive the conflicts of interest are
between inspection agencies and accrediting bodies.
Hospital Accreditation and Conflicts of Interest
The mission of accrediting bodies is to improve the quality of care rendered in
the nation’s hospitals through its survey process. The Joint Commission (TJC),
an accrediting body in the healthcare industry, for example, is dependent upon
the hospitals it surveys/inspects to reimburse it for the costs of those surveys.
Therefore, TJC, out of its own necessity for financial survival, must maintain
satisfied clients, and in so doing, a conflict arises. How credible can a survey
be when the accrediting body is dependent on the organizations it surveys for
financial survival? Furthermore, hospitals evaluate the performance of the
surveyors. The survival of the surveyor in his or her job is dependent upon
satisfactory evaluations from the contracting hospitals. Conflicting interests
here encourage surveyors/inspectors to be careful about what he or she
scores because of fear of retaliation by both the organizations surveyed and
the employer. Accrediting organizations are far from effective in protecting the
consumer from the human errors that result in numerous deaths and injuries
annually in the nation’s hospitals.
FOOD INSPECTION IS OFTEN FLAWED
The voluntary quality control system widely used in the nation’s $1 trillion
domestic food industry is rife with conflicts of interest, inexperienced
auditors and cursory inspections that produce inflated ratings, according to
food retail executives and other industry experts.
• • •
Suppliers “will hunt down the fastest, cheapest, easiest and least-intrusive
third-party auditors that will provide the certificate” that will allow them to sell
their product. . . . until that model flips, there will continue to be a false sense
of security in terms of what these systems offer.
—Lena H. Sun, The Washington Post, October 22, 2010
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The food inspection process is similar to that of the healthcare industry. Food
makers often know when inspectors will audit their facilities, and they
vigorously prepare for those inspections. This was also true for hospitals up
until several years ago, when TJC decided to conduct unannounced surveys.
This change occurred mostly due to criticism from its own surveyors, the
Centers for Medicare and Medicaid Services, the public, and some of the
surveyed organizations.
Food makers often score high in their inspections yet still have recalls and
foodborne diseases from eating contaminated food or beverages. TJC, up until
several years ago, scored hospitals. They discontinued the scoring process
because of criticism, once again from its own surveyors and others. Because
of the competition between hospitals, the surveyors were pressured to provide
high scores by the organizations they surveyed. Large billboards could be
seen on Florida highways advertising scores of 100, yet they may have not
provided any better quality of care then a hospital that scored 80. One small
town hospital advertised in a newspaper that it scored 100 on a TJC survey.
This same hospital had no full-time emergency department physician. One
young lady said, “I was home recently and saw plastered in a full page ad that
my hometown hospital scored 100 in its most recent accreditation survey. I
would not take my dog to that hospital. They killed my mom.” As with
hospitals, the food companies typically pay food industry inspectors, creating a
conflict of interest for inspectors who might fear that they will lose business if
they do not hand out high ratings.
Accreditation in both the healthcare and food industries is plagued by one
major disturbing issue: There is a transparent conflict of interest between
various inspecting agencies and the entities they inspect, placing the public’s
health at risk to benefit their bottom line. Someone has to regulate the
regulators.
The Joint Commission National Patient Safety Goals
TJC is striving to improve patient safety by identifying national patient safety
goals, as well as adding and revising standards in the accreditation process.
National patient safety goals have included improving the patient identification
process (e.g., using two patient identifiers when administering medications);
eliminating transfusion errors; improving the effectiveness of communication
among caregivers; timely reporting of critical test results; improving the safety
of medication use; reducing harm from anticoagulation therapy; reducing the
risk of hospital-acquired infections; accurately reconciling medications;
communicating each patient’s medication list to the next provider; providing a
reconciled medication list to each patient at discharge; reducing the risk of
patient harm resulting from falls; preventing healthcare-associated pressure
ulcers; identifying and addressing safety risks inherent in various patient
populations served (e.g., adults, children); identifying individuals at risk for
suicide; reducing the risks for falls and injury; and developing a Universal
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Protocol for Preventing Wrong Site, Wrong Procedure, and Wrong Patient
Invasive Procedures. The protocol requires implementation of a process
verifying the correct procedure, for the correct patient, at the correct site,
including the marking of the procedure site with the patient’s participation. A
preprocedure time-out (immediately prior to surgery) requires that all
participants involved in an invasive procedure unanimously agree that the
correct patient is on the surgical table and is about to undergo the correct
procedure at the correct site.
Periodically, TJC introduces new national patient safety goals into its survey
process. Surveyors from TJC evaluate organizations at the time of an
organization’s accreditation survey, determining compliance with patient safety
goals and the standards outlined in its accreditation manual. From time to
time, goals are incorporated into the standards section of the accreditation
manual. The goals encourage compliance with safe practices in the delivery of
patient care and are designed to reduce the likelihood of medical errors. As a
result of the frequency of questions asked regarding interpretation,
implementation, and the periodic introduction of new goals into the survey
process, TJC website (www.jointcommission.org) should be referenced for
current information.
The Joint Commission Complaint Process
TJC has put into practice a patient complaint process that requires the
healthcare organizations it accredits to educate employers and employees as
to their right to report safety or quality concerns to TJC. TJC policy forbids
accredited organizations from taking retaliatory actions against employees for
having reported quality of care concerns to TJC. Patient complaints may be
reported using the following means:
Email (complaint@jointcommission.org)
Fax (Office of Quality Monitoring at 630-792-5636)
Mail (Office of Quality Monitoring, The Joint Commission, One
Renaissance Boulevard, Oakbrook Terrace, IL 60181)
Telephone (800-994-6610) for questions about how to file a complaint
(8:30 AM to 5:00 PM, Central Time, weekdays). Note: Surveyors may
query staff during the survey process as to what procedures an
organization has in place for addressing quality of care concerns and
how employees and patients are educated as to TJC’s complaint
process.
Duty to Provide Adequate and Competent Staff
Adequate staffing requires that managers not merely employ sufficient staff to
provide patient care but also insure that each position is filled with an
individual with the appropriate qualifications for the job for which he or she is
hired. The importance of sound hiring practices is well borne out in the
following reality check.
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http://www.jointcommission.org

Under federal law, nursing homes must have sufficient nursing staff to provide
nursing and related services adequate to attain and maintain the highest
practicable physical, mental, and psychosocial well-being of each resident, as
determined by resident assessments and individual plans of care. As nursing
homes are increasingly filled with older, disabled residents with ever-
increasing complex care requirements, demand for highly educated and
trained nursing personnel continues to grow. Organizations that fail to meet
federal standards can lose certification as a provider of patient care. This, in
turn, can lead to the denial of reimbursement under federal entitlement
programs.
“Federal health officials have concluded that most nursing homes are
understaffed to the point that patients may be endangered. For the first time,
the government is recommending strict new rules that would require
thousands of the homes to hire more nurses and health aides.” A report
released by Representative Ciro Rodriguez and Representative Gene Green
in 2002 found that the vast majority of Texas nursing homes are understaffed
and fail to comply with federal standards. The continuing problems of
nursing home staffing prompted Representative Waxman to introduce the
Nursing Home Staffing Act of 2005 to establish minimum staff requirements for
nursing homes receiving payments under the Medicare or Medicaid program.
Many medical and regulatory investigators who work in nursing homes
every day characterize the number of wrongful deaths in terms such as
“massive” and “pervasive,” based on their daily experience. Most of the
deaths can be traced to an inadequate number of nurses and aides to
provide life-sustaining care. The U.S. Department of Health and Human
Services reported to Congress this year [2002] that nine out of 10 nursing
homes have staffing levels too low to provide adequate care.
MATCHING RESPONSIBILITIES WITH QUALIFICATIONS
An off-duty TJC surveyor entered a hospital in his hometown with his wife
for urgent care. When he entered the emergency department (ED) reception
waiting area, a sign was noted at the reception desk that read, “Please have
a seat. There is a 3½ hour wait for nursing triage.” The surveyor was unable
to satisfy the receptionist that his wife needed urgent care. The receptionist
insisted that his wife would have to wait her turn. The surveyor eventually
spoke to the hospital’s on-call night administrator. The surveyor explained
current practice requires that triage be readily available for all patients. The
administrator agreed and the surveyor’s wife was attended to. The sign was
later removed.
In another instance a surveyor noted that there was a two-step process
before a triage nurse would examine a patient. The first step required the
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patient to sign in at the receptionist desk upon arriving in the ED, where the
patient was required to write his or her name, date, and time on a sign-in
sheet. The patient was then be requested to sit in the ED waiting area until
summoned by a business office admissions intake clerk, who was
responsible for gathering demographic and financial information. The clerk
would then prioritize the order in which patients would be seen by a triage
nurse, who would then determine who would be treated next in the ED
treatment area. In speaking with two admissions clerks, the surveyor asked,
“Do you feel comfortable making medical decisions as to in what order
patients should be examined by a triage nurse?” The admissions clerk
handing the surveyor a notice posted at her desk said, “We are provided this
posting that lists 14 patient symptoms to look for to help us determine in
what order they should be referred to a triage nurse.” The surveyor asked,
“Are you comfortable that this list provides you with sufficient information
and training to make such a decision?” Simultaneously they both said, “No!”
In this instance, the admitting clerk’s responsibilities and qualifications to
perform the assigned tasks were inadequate to perform the requirements of
the job.
The answer to staffing requires a continuing emphasis on recruitment and
education, development of career ladders, respect for caregivers, salaries
commensurate with the requirements of the job, and severe prosecution of
those who seek financial gain by purposely understaffing their homes.
Deficient Nursing Care
The nursing facility in Our Lady of the Woods v. Commonwealth of Kentucky
Health Facilities was closed because of deficiencies found during an
inspection of the facility, the most serious of which was the lack of continuous
nursing care on all shifts. The court held that evidence that the nursing facility
lacked continuous services required by regulation was sufficient to sustain an
order to close the facility. Many witnesses testified concerning the deficiencies,
and even the administrator admitted to the most serious violation—lack of
continuous nursing services. The hearing officer, although noting that the
quality of care provided to the facility’s residents was satisfactory, concluded:
The facts clearly reveal that the respondent has long violated one of the
“essential functions of a nursing home” by not providing continuous
graduate nursing supervision. To contend that such supervision can be
provided from afar (by an “on-call” nurse) is to contend that a resident will
never be confronted with a medical problem of such immediacy that his
health or even his life would not be endangered while awaiting the arrival of
the “on-call” professional. Such contention is unacceptable; the facility
violated on a protracted basis one of its most substantive mandates.
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Absent proof that an adequate nursing staff could not be obtained (there is
no such proof herein), it must be concluded that there is no justification for
this violation.
The court held that “deference is given to the trier of the fact, and agency
determinations are to be upheld if the decision is supported by substantial,
reliable, and probative evidence in the record as a whole.”
Timely Response to Patient Calls
Healthcare organizations must provide for adequate staffing. The court of
appeals in Leavitt v. St. Tammany Parish Hospital held that the hospital
owed a duty to respond promptly to patient calls for help. The hospital
breached its duty by having less than adequate staff on hand. In addition, the
staff failed to at least verbally answer an assistance light to inquire what the
patient needed.
Postoperative Care
The patient in Czubinsky v. Doctors Hospital, recovering from anesthesia,
went into cardiac arrest and sustained permanent damages. The court of
appeals held that the injuries sustained by the patient were the direct result of
the hospital’s failure to properly monitor and render aid when needed in the
immediate postoperative period. The registered nurse assigned to the patient
had a duty to remain with her until the patient was transferred to the recovery
room. The nurse’s absence was the proximate cause of the patient’s injuries.
Failure of the hospital to provide adequate staff to assist the patient in the
immediate postoperative period was an act in dereliction of duty—a failure that
resulted in readily foreseeable permanent damages.
Nursing Facility Staffing
Residents in nursing facilities must be under the care and supervision of a
physician. Provision should be made by the facility to obtain the services of at
least one physician to oversee the quality of medical care.
States are more exacting than Medicare regulations in expressing nurse–
resident ratios. In Koelbl v. Whalen, regulations requiring the employment of
sufficient personnel to provide for resident needs in nursing or convalescent
homes were found to be sufficiently clear to avoid their being held
unconstitutionally vague. State regulations vary in the methods used to
establish staffing requirements. State regulations often are developed to
ensure that the resident receives treatment, therapies, medications, and
nourishment as prescribed in the resident care plans; the resident is kept
clean, comfortable, and well groomed; and the resident is protected from
accident, infection, and so forth.
In addition to nurses and physicians, a variety of other healthcare workers in
nursing facilities support the care and services provided to residents. They
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include dietitians, physical therapists, social workers, activity directors, and
others. The members of this group have specialized training and usually are
licensed or certified by the state to practice their specialties. They differ from
the medical or nursing staff in that they may not be involved with all residents,
but rather limit their activities to residents needing their special skills.
Deficient Care Given
In Montgomery Health Care Facility v. Ballard, three nurses testified that the
nursing facility was understaffed. One nurse testified that she asked her
supervisor for more help but did not get it. The estate of a nursing home
resident that passed away as the result of multiple infected bedsores brought
a malpractice action against the nursing home. First American Health Care,
Inc., is the parent corporation of the Montgomery Health Care Facility. The trial
court entered a judgment on a jury verdict against the home, and an appeal
was taken. The Alabama Supreme Court held that reports compiled by the
Alabama Department of Public Health concerning deficiencies found in the
nursing home were admissible as evidence. Evidence showed that the care
given to the deceased was deficient in the same ways as noted in the survey
and complaint reports, which indicated deficiencies in the home, including:
[I]nadequate documentation of treatment given for decubitus ulcers; 23
patients found with decubitus ulcers, 10 of whom developed those ulcers in
the facility; dressings on the sores were not changed as ordered; nursing
progress notes did not describe patients’ ongoing conditions, particularly
with respect to descriptions of decubitus ulcers; ineffective policies and
procedures with respect to sterile dressing supplies; lack of nursing
assessments; incomplete patient care plans; inadequate documentation of
doctor’s visits, orders or progress notes; AM care not consistently
documented; inadequate documentation of turning of patients; incomplete
“activities of daily living” sheets; “range of motion” exercises not
documented; patients found wet and soiled with dried fecal matter; lack of
bowel and bladder retaining programs; incomplete documentation of
ordered force fluids.
The defendants argued that the punitive damage award of $2 million against
the home was greater than what was necessary to meet society’s goal of
punishing them. The Alabama Supreme Court, however, found the award not
to be excessive. “The trial court also found that because of the large number
of nursing home residents vulnerable to the type of neglect found in Mrs.
Stovall’s case, the verdict would further the goal of discouraging others from
similar conduct in the future.”
Duty to Provide Timely Treatment
Healthcare organizations can be held liable for delays in treatment that result
in injuries to their patients. For example, the patient in Heddinger v. Ashford
Memorial Community Hospital filed a malpractice action against the hospital
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and its insurer, alleging that a delay in treating her left hand resulted in the
loss of her little finger. Medical testimony presented at trial indicated that if
proper and timely treatment had been rendered, the finger would have been
saved. The U.S. District Court entered judgment on a jury verdict for the
plaintiff in the amount of $175,000. The hospital appealed, and the U.S. Court
of Appeals held that even if the physicians who attended the patient were not
employees of the hospital but were independent contractors, the risk of
negligent treatment was clearly foreseeable by the hospital.
Provide Adequate Facilities, Equipment, and Supplies
Healthcare organizations are under a duty to exercise reasonable care to
furnish adequate facilities, equipment, and supplies for use in the diagnosis or
treatment of patients. Buildings and equipment should be maintained and
operated to prevent fire and other hazards to personal safety. Patient rooms
should be designed and equipped for adequate nursing care, comfort, and
privacy. Mechanical, electric, and patient care equipment should be
maintained in a safe operating condition.
DISARRAY AT VA HOSPITAL DETAILED IN NEW REPORT
At the main health-care facility for veterans in the nation’s capital, doctors
have had to halt operating room procedures and dialysis treatments in the
past year because of the lack of supplies, nurses have frantically run
through the facility hunting for nasal oxygen tubes during an emergency,
and sterile surgical items have been left in dirty or cluttered supply rooms,
according to a new report.
—Aaron C. Davis, The Washington Post, April 14, 2017
Driftwood Convalescent Hospital, operated by Western Medical Enterprises,
Inc., in Beach v. Western Medical Enterprises, Inc., was fined $2,500 in civil
penalties because of nonfunctioning hallway lights and the facility’s failure to
provide the type and amount of decubitus preventive equipment necessary for
resident care as required by the California Health and Safety Code. The
regulations required that equipment necessary for care of patients, as ordered
or indicated, be provided.
Though no evidence was introduced to show that the decubitus equipment
had been ordered by a physician, the phrase “as indicated” supports an
inference that when a patient’s condition requires certain equipment, the
fact that no physician has ordered that equipment does not relieve the
hospital (nursing facility) of the responsibility for providing equipment
necessary for patient care.
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Provide a Safe Environment
Organizations are encouraged to create and maintain a culture of safety in
order to reduce the risks of patient injuries and deaths as a result of common
mistakes. Patients expect hospitals to provide a safe environment for medical
care. Although healthcare organizations are aware of where systems break
down, evidence suggests that they have been ineffective in preventing patient
injuries that are often the result of human error or just plain carelessness.
Develop a Culture of Safety
Implementation of the following suggestions will help hospitals move toward a
culture of safety:
Ensure that accountability and responsibility have been assigned for
monitoring an organization’s safety initiatives.
Involve the medical staff in the development and implementation of
systems that are designed to create a culture of safety.
Educate all staff as to their individual roles in establishing and
maintaining a safe environment for patients.
Encourage patients to question their care. Provide guidelines in patient
handbooks as to the kinds of questions that patients should be asking
caregivers (e.g., I don’t recognize this medication, is it new? What is
this medication for? Did you wash your hands before changing my
surgical dressing? Is my nurse, Ms. X, off today?).
Appoint a safety officer to oversee the patient safety committee and
day-to-day safety activities.
Establish a patient safety committee with responsibility for oversight of
the organization’s patient safety program. The patient safety committee
is a multidisciplinary committee that includes representation from
administration, nursing, and medical staff.
Set up a dedicated, 24-hour-a-day safety hotline.
Establish a voluntary event reporting system. Educate employees and
patients as to reporting options (e.g., telephone, email). Assure
employees that there will be no retaliation for reporting patient safety
concerns.
Implement lifesaving initiatives that include: (1) establishing a rapid
response team; (2) improving care for myocardial infarctions; (3)
preventing adverse drug events; (4) preventing central line–associated
bloodstream infections; (5) preventing surgical site infections; and (6)
preventing ventilator-associated pneumonia.
Use the online tools released by Agency for Healthcare Research and
Quality (AHRQ) to assist in evaluating and improving safe care.
WINDOWS WIDE OPEN
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With windows wide open, what happened to the pharmacy employees
who were exposed to carbon monoxide from the tailpipes of ambulances
backed up to the open windows of City Medical Center’s ground floor
pharmacy?
During a tour of City Medical Center, Bill, the surveyor-inspector asked to
tour the pharmacy as part of the survey process. He was taken to the
ground floor where the pharmacy was located. He was escorted into the
pharmacy by several hospital staff members assigned to escort him during
the 5-day survey process and respond to any questions he might have. As
Bill entered the pharmacy, he noticed a strong odor of exhaust fumes.
He observed that windows were open along the length of the pharmacy’s
outside wall. He walked toward the open windows and counted and
observed 8 to 10 ambulances that were parked and backed up to the open
windows, some with engines running.
The odor from the fumes permeated the pharmacy. He noticed the
admixture room where IV solutions were prepared for patients. He noticed
the windows were open in this room as well. The room was quite warm, as
was the rest of the pharmacy. There were no intake or ventilation systems in
place other than the hoods under which the staff worked. There were no air
conditioning or air exhaust systems in the room other than the open
windows. Bill asked the staff, “Do these fumes bother you?” They replied,
“Oh no, we don’t notice it anymore.” Bill asked, “How long have these
windows been opened?” Their reply, “Not sure. Several years.”
After touring and speaking to the staff working in the pharmacy, Bill turned to
the pharmacy manager and asked, “Have you ever reported this to your
manager.” She replied, “Yes, I have. But it gets too hot in the pharmacy
during the summer to keep them closed.” Looking at his escorts, Bill said,
“This is not a good situation. Employees have been exposed to exhaust
fumes for way too long. And it is likely that the exhaust fumes contain
carbon monoxide. Everyone working in the pharmacy needs to be tested for
carbon monoxide poisoning. The windows need to be closed and the
ambulances removed to a safer location. And the intake and exhaust
systems need to be addressed.” One of the escorts replied, “Mayor X will
not be happy with this.” Bill replied, “This is not about the mayor, this is
about the people working here.”
The following morning Bill was asked by his escorts to go back to the
pharmacy for another tour. He agreed to go back. He was presented with
architectural drawings prepared during the night addressing the air intake
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and exhaust systems flaws. Not only were the drawings prepared but the
necessary construction work was completed, with air-conditioning and
exhaust ducts installed. The ambulances had been removed to a more
appropriate location. Bill looked at the escorts and pharmacy manager and
said, “Your work has only begun. Everyone here needs to be tested, and if
necessary, treated for carbon monoxide poisoning.” The question is: After
each survey, do hospitals actually follow through with recommendations for
improving the working environment and protect patients, staff, and visitors
from harm?
City Medical Center could be liable for any harm suffered. The seriousness
is easy to understand; knowingly failing to address such issues in a timely
manner is gross negligence.
Physical Environment
Each organization is responsible for providing a safe physical environment for
patients, staff, and visitors. Responsibility for this function is often assigned to
an organization’s plant services/engineering department. Among other duties,
the department is responsible for the provision of heat, water, electricity, and
refrigeration and for maintenance of the organization’s equipment and physical
plant. The duties of the department may vary depending on the size of the
organization and a particular organization’s facilities.
An organization can be subject to corporate liability if it fails to ensure a
patient’s safety and well-being. Healthcare corporations are liable for injuries
to both patients and employees arising from environmental hazards. For
example, the license of a nursing facility operator was revoked in Erie Care
Center, Inc. v. Ackerman on findings of uncleanliness, disrepair, inadequate
record keeping, and nursing shortages. The court held that although the
violation of a single public health regulation may have been insufficient in and
of itself to justify revocation of the nursing home’s operating license, multiple
violations, taken together, established the facility’s practice and justified
revocation.
In the following reality check, management failed in its responsibility to provide
a safe working environment for its employees. The case in point here is that
environmental issues need to be addressed in a timely manner.
Unsafe Walking and Driving Conditions
The plaintiff in Lutheran Hosp. of Ind. v. Blaser crossed the street one
evening after visiting her husband in the hospital and was hit by a car as she
was walking up the driveway to the hospital parking lot. She was struck from
behind when the car was turning into the parking lot exit. The patient and her
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husband brought a negligence suit against the hospital as a result of the
injuries she suffered.
Drivers, in general, could not determine that the driveway was not an exit until
such time as they were alongside it or were in the process of turning into the
driveway. Each night, three or four cars mistakenly mistook the exit for an
entrance. Outside visual cues actually drew pedestrians to cross the highway
mid-block in order to enter the lot. Neither security guards nor the parking lot
attendants had attempted to dissuade pedestrians from crossing the street
mid-block. The superior court found that the funneling of pedestrians and
vehicular traffic into the exit driveway created a dangerous condition that the
hospital should have reasonably foreseen, and the court entered judgment for
the plaintiffs. The hospital appealed, claiming that although it maintained the
driveway, it did not have control over the driveway.
The Indiana Court of Appeals held that the accident was sufficiently
foreseeable to require the hospital to protect its invitees from such a mishap.
The hospital had a legal duty to exercise reasonable care for the plaintiff’s
protection. The hospital’s failure to post adequate safeguards or warnings to
pedestrians and automobiles against the use of the exit driveway as an
entrance to the parking lot was the proximate cause of the injuries suffered by
the plaintiff.
Construction Hazards
The nursing facility’s operating certificate in Slocum v. Berman was revoked
for violations of nursing home regulations relating to construction and safety
standards. The most critical issues related to the facility’s structure, which was
neither protected wood frame nor fire resistive as required by regulation. This
was a violation that adversely affected the health, safety, and welfare of the
occupants. It was determined that the nursing home could not be made
reasonably safe or functionally adequate for nursing home occupancy.
Fire Hazards
In Stacy v. Truman Medical Center, the patients’ families brought wrongful
death actions against the medical center and one of its nurses. The wrongful
death actions resulted from a fire in the decedents’ room at the medical center.
On the day of the fire, Ms. Stacy visited her brother, Stephen Stacy. When she
arrived, Stephen, who suffered from head injuries and was not supposed to
walk around, was sitting in a chair smoking a cigarette with the permission of
one of the nurses. Ms. Stacy also lit a cigarette, and because she did not see
an ashtray in the room, she used a juice cup and a plastic soup tray for her
ashes.
At approximately 5:00 PM, a nurse came in and restrained Stephen in his
chair with ties to prevent him from sliding out of the chair. Before Stacy left,
she lit a cigarette, held it to Stephen’s mouth, and extinguished it in the soup
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tray. When Ms. Stacy left, she believed there were one or two cigarette butts
in the soup container. She did not recall dumping the soup tray into the
wastebasket.
Shortly after 5:00 PM, a fire started in a wastebasket in the room. There was
no smoke detector in the room. Another patient, Wheeler, was in the bed next
to the windows. When Ms. Schreiner, the nurse in charge, discovered the fire,
she did not think Wheeler was in immediate danger. She unsuccessfully tried
to untie Stephen from his restraints. Then she attempted to put out the fire by
smothering it with a sheet. When her attempts to extinguish the fire failed, she
ran to the door of the room and yelled for help, which alerted Nurses Cominos
and Rodriguez. After calling for help, Ms. Schreiner resumed her attempts t