Tort Law−Negligence

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Chapter 3
Tort Law−Negligence
Learning Objectives
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 anegligence case.
Tort Law
Definition
A tort is a civil wrong, other than a breach of contract, committed against a person or property (real or personal) for which a court provides a remedy in the form of an action for damages.
What are the objectives of tort law?
Objectives of Tort Law
Preservation: Of peace between individuals
Culpability: Find fault for wrongdoing
Deterrence: To discourage the wrongdoer (tort-feasor) from committing future wrongful acts
Compensation: To indemnify injured person(s)
What are the three basic categories of tort law?
Negligence
Negligence is a tort.
It is the “unintentional” commission oromission of an act that a reasonably prudent person would or would not do undergiven circumstances.
What is commission of an act?
Commission of an Act
Administering the wrong medication
Administering the wrong dosage of a medication
Administering medication to the wrong patient
Performing a surgical procedure without patient consent
Performing a surgical procedure on the wrong patient or body part
Performing the wrong surgical procedure
What is omission of an act?
Omission of an Act
Failing to conduct a thorough history andphysical examination
Failing to assess and reassess a patient’snutritional needs
Failing to administer medications
Failing to order diagnostic tests
Failing to follow up on abnormal test results
Failing to conduct a time-out prior to surgery
What is malpractice?
Malpractice
Negligence or carelessness of aprofessional person
Nurse practitioner, pharmacist, physician, physician’s assistant
For example: A surgeon who conducts a surgical procedure on the wrong body part
What is criminal negligence?
Criminal Negligence
“Reckless disregard” for the safety of another
Willful indifference to injury that could follow an act
What are three forms of negligence?
Forms of Negligence
Malfeasance
Misfeasance
Nonfeasance
What is malfeasance?
Malfeasance
Execution of an unlawful or improper act
For example: Performing a partial birth abortion in the third trimester when prohibited by law
What is misfeasance?
Misfeasance
Improper performance of an act
For example: Wrong-sided surgery, such as the removal of a healthy kidney instead of the diseased right kidney
What is nonfeasance?
Nonfeasance
Failure to act when there is a duty to act
For example: Failing to order diagnostic tests or prescribe medications that should have been ordered or prescribed under the circumstances
What are two degrees of negligence?
Degrees of Negligence
Slight: Minor deviation of what is expected underthe circumstances
Ordinary negligence: Failure to do what an ordinary, prudent person would do
Gross negligence: Intentional or wanton omission of required care or performance of an act
What are the elements of negligence?

Elements of Negligence
Duty to use due care
Standard of care
Breach of duty
Injury/actual damages
Causation
Proximate cause
Foreseeability
What is duty to care?
Duty to Care
A legal obligation of care, performance, or observance imposed on one to conform to a recognized standard of care to safeguard the rights of others
Standard of Care
The standard of care describes the conduct expected of an individual in a given situation.
The general standard of care that must be exercised describes what a “reasonably prudent person” would or would not do under the “same or similar circumstances.”
It is a measuring stick for properly assessing actual conduct required of an individual.
The reasonableness of conduct is judged in light of the circumstances apparent at the time of injury and by reference to different characteristics of the actor (e.g., age, gender, physical condition, education, knowledge, training, and mental capacity).
Describe a reasonably prudent person.
Reasonably Prudent Person
Describes a nonexistent, hypothetical person who is put forward as the community idealof what would be considered reasonablebehavior
What is meant by similar circumstances?
Similar Circumstances
Circumstances at the time of the injury
Circumstances of the alleged wrongdoer(s) at the timeof injury
Age
Physical condition
Education and training
Licenses held
Mental capacity, etc.
How is the standard of care determined?
Determining Standard of Care
Established by a legislative enactment or administrative regulation
Adopted by the court from a legislative enactment or an administrative regulation
Established by judicial decision
Applied to the facts of the case by the trial judge or jury if there is no such enactment, regulation, or decision
Courts often rely on the testimony of an expert witness as to the standard of care required.
Community standard of care vs. national standardof care
Duty Created by Statute
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.
Hastings Case: Duty to Care
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 bylaws provide that patient transfershould not occur without due consideration for the patient’s condition.
Community vs. National Standard
Community standard
The hometown standard: We want to do thingsour way.
National standard
Most currently accepted standard of care on a national basis.

Ethics and Standard of Care
Some medical standards of care are influenced by medical ethics.
For example, a decision concerning termination of resuscitation efforts is an area in which the standard of care includes an ethical component.
Case: Hiring Practices
The nurse was hired sight unseen over the telephone.
The applicant falsely stated in an employee application that he was licensed as an LPN.
His license was not verified by the employer.
He had committed 56 criminal offenses of theft.
He assaulted a resident and broke the resident’s leg.
What was the duty of the employer?

Case: Hiring Practices
Employer’s Duty
Standard expected
The employer had a “duty” to validate the nurse’s professional license.
What is breach of duty?

Breach of Duty
The failure to conform to or the departure from a required obligation owed to a person
The obligation to perform according to a standard of care may encompass either doing or refraining from doing a particular act
Deviation from the recognized standard of care
Failure to adhere to an obligation
Failure to conform to or the departure from a required duty of care owed to a person
Hastings Case: Breach of Duty
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.
Breach of Duty Examples
For example, breach of duty occurs when
A physician fails to respond to his or heron-call duties.
An employer fails to adequately conduct apre-employment check (e.g., licensure, background check).
What is an example of a breach of duty?
Case: Hiring Practices
Breach of Duty
The nurse was hired sight unseen over the telephone.
The applicant falsely stated in an employee application that he was licensed as an LPN.
His license was not verified by the employer.
He had committed 56 criminal offenses of theft.
He assaulted a resident and broke the resident’s leg.
What was the breach of duty?

Case: Hiring Practices
Breach of Duty (cont’d)
The employer failed to verify the applicant’s licensure.
A more thorough background check shouldhave revealed this employee’s previous criminal conduct.
Discuss the element of injury.
Injury
Actual damages must be established.
If there are no injuries, no damages are due.

Hastings Case: Injury
Causation in the Hastings v. Baton Rouge Hospital case was well-established.
In the ordinary course of events, Hastings would not have bled to death in a hospital emergency department over a 2-hour period without some surgical intervention to save his life.
Case: Hiring Practices
Injury
The nurse was hired sight unseen over the telephone.
The applicant falsely stated in an employee application that he was licensed as an LPN.
His license was not verified by the employer.
He had committed 56 criminal offenses of theft.
He assaulted a resident and broke the resident’s leg.
What was the injury?

Case: Hiring Practices
Injury (cont’d)
The resident suffered a broken leg.
The hospital is vicariously liable for thenurse’s conduct.
Criminal charges are applicable in this case against the nurse.
What is causation?
Causation
Reasonable anticipation that harm or injuryis likely to result from an act or an omissionto act
Act or conduct in departing from recognized standard of care must be cause of patient’s injury
Injury must have resulted from breach of duty
Injury must have been foreseeable
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.
Hastings Case: Causation
Causation in the Hastings v. Baton Rouge Hospital case was well-established.
In the ordinary course of events, Hastings would not have bled to death in a hospital emergency department over a 2-hour period without some surgical intervention to save his life.
Case: Hiring Practices
Causation
The nurse was hired sight unseen over the telephone.
The applicant falsely stated in an employee application that he was licensed as an LPN.
His license was not verified by the employer.
He had committed 56 criminal offenses of theft.
He assaulted a resident and broke the resident’s leg.

Case: Hiring Practices
Causation Established
Reasonable anticipation that harm or injury was likelyto occur
The patient suffered a broken leg.
Departing from recognized standard of care
Failure to verify licensure and conduct an adequate background check
Injury resulted from the breach of duty
Injury was foreseeable
Case: Failure to Hydrate
Causation
Failure to administer proper hydration
Not unreasonable to conclude that one’s dehydration can be caused by failing to provide water
Describe what is meant by foreseeability.
Foreseeability
Reasonable anticipation that harm or injuryis likely to result from an act or an omissionto act
What is the test for foreseeability?
Test for Foreseeability
The test for foreseeability is whether a person of ordinary prudence and intelligence should have anticipated danger to others caused by his or her negligent act.
What is causation?
Hastings Case
Foreseeability
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 what a reasonably prudent person would foreseeand would do in light of this foresight under the circumstances.
Case: Hiring Practices
Foreseeability
A person of ordinary prudence and intelligence should have anticipated the danger to the resident caused by the employer’s negligent act.

Case: Hot Radiator
Foreseeability
A patient’s left foot came in contact with a radiator and she suffered third-degree burns.
The defendant had knowledge of the plaintiff’s condition.
The defendant should have shielded the radiator or not placed the plaintiff next to it.
Cases: Foreseeability
O’Neill v. Montefiore Hospital (1960)
O’Neill visits ER at 5:00 AM with chest pains
Niles v. City of San Rafael (1974)
Kelly Niles suffers head injury
Hastings v. Baton Rouge Hospital (1985)
19 year old with stab wounds to the neck
Surgery
Sponge and Instrument Count
Dr. Smith owns the local outpatient surgery center.
He instructs employees to count all instruments and surgical sponges following a surgical procedure, prior to closing the surgical site.
Annie, an employee, failed to conduct the count following Bill’s surgery.
Two months later, Bill, suffering from extreme abdominal pain was noted to have several sponges and an instrument in his abdomen, which had caused him to develop a massive infection.
Will Dr. Smith be liable for Annie’s negligence?
Decision
Sponge and Instrument Count
Yes!
Even though Annie had strict instructions to count the sponges and surgical instruments prior to closing the surgical site, she failed to do so.
To determine otherwise would undermine the doctrine of vicarious liability, since employers would almost always escape liability by presenting evidence that employees were given careful instructions.
Review Questions
Describe the objectives of tort law.
Explainbetween negligence and malpractice?
Describe the elements of a negligence that the plaintiff must establish in a negligence suit.
Describe the importance of causation in establishing liability in a negligence suit.