IntroductionEven when procedures or treatments are conducted with the best intentions and

skill, they don’t always turn out as expected. Unfortunately, we are living in a litigious society,
and when medical accidents happen, the patients and their families may look for someone to
blame.

Healthcare professionals need to be on constant alert for practices that could result in injury to
the patient. Not only is the injury a painful process, it can also be a life-threatening one. All
healthcare professionals must realize that they are responsible for their actions. The
physician/employer also assumes responsibility for the employees through the doctrine of
respondeat superior. While people have always been liable for their own conduct, the courts are
now finding that everyone associated with negligent actions is liable for damages (monetary
award to the plaintiff) (Figure 6.1).

Figure 6.1

All healthcare professionals need to put safety first

Source: [Link]/Shutterstock

The topics of negligence and malpractice are briefly discussed in Chapter 2. This chapter
concentrates on professional liability and how to prevent malpractice from happening. Included
in this chapter are numerous examples of court cases to illustrate the wide variety of lawsuits
and negligence cases that name physicians and hospitals as defendants. While most of the
cases reflect legal actions against physicians, all people working in the healthcare professions
can be sued. Examples are also provided of other healthcare professionals who have been
named in lawsuits, such as advance practice providers, nurses, medical assistants, dental
assistants, laboratory technicians, nursing assistants, paramedics, pharmacists, physical
therapists, and respiratory therapists.

Med Tip

All healthcare workers are responsible for their actions even though the doctrine of respondeat
superior states that an employer is also liable for injury to a patient.

Professional Negligence and Medical MalpracticeProfessional misconduct, including incorrect or

negligent treatment of a patient by persons responsible for that patient’s healthcare, such as
physicians, dentists, nurses, and other allied health professionals, or a demonstration of an
unreasonable lack of skill with the result of injury, loss, or damage to the patient, is considered
malpractice. Malpractice is negligence or other wrongdoing committed by a professional person,
such as a healthcare professional. Malpractice acts consist of professional misconduct,
improper discharge of professional duties, and failure to meet professional standards of care
that result in harm to another person. A physician is held to a different but not higher standard of
care than a nurse, medical assistant, physician assistant, or phlebotomist. In the United States,
physicians and most licensed professionals such as nurse practitioners, physician assistants,
and nurses are held to a national standard of care. This standard is set by observing what a
competent peer in another location would do in a similar circumstance. It is important to note
that this high level of practice and “standard of care” is actually the minimum that is considered
[Link] malpractice is relatively clear and easy to determine, such as when a surgical
instrument left in a patient during an operation shows up on X-ray. However, many cases are not
as clear. There are cases in which the physician or other healthcare professional has performed
a procedure that would normally be beneficial but does not have the expected outcome.
Because each patient is unique, each may react differently to medical treatment. If there is a
negative result, the patient and family are naturally upset. But is this malpractice? A court of law
is often asked to determine the [Link] is a form of malpractice that occurs when a
healthcare professional either performs an action a reasonable professional would not have
performed or fails to perform an action a reasonable professional would have performed in a
similar situation. For example, two of the most common errors resulting from negligence in
healthcare facilities are medication errors and patient falls. Both of these errors are preventable
by double-checking all orders and using caution. Med TipA person who is injured sues under
tort law (“a wrongful act against another person”). Negligence is categorized as an unintentional
tort. That is, the healthcare professional did not intend to do the wrong thing. (A wrong done
deliberately would be categorized as an intentional tort.) The unintentional tort of negligence is
the most common basis of lawsuits against healthcare [Link] to a patient is not the
only cause of negligence suits. In addition, charges of negligence against a physician or other
healthcare professional often arise because the patient or family is not happy with the outcome
of the treatment or procedure. A jury in a negligence trial would have to determine if a
reasonable professional person would have done the same action or would have treated the
patient in the same way. Med TipHealthcare professionals are expected to use “reasonable skill”
when providing care and treatment to patients. Not everyone will perform an action in exactly
the same way, as each person’s skill level will vary by small degrees from the skill levels of
others in the same profession or position. However, an “unreasonable lack of skill” is
unacceptable because it can be concluded that the person did not have even the minimum
required skill level or has simply been careless in performing the skill. This lack of skill or
unacceptable performance of the skill can result in injury to the patient.

Many people consider the tort (civil wrong) of negligence and the tort of malpractice to be the
same thing. The difference is that malpractice is a broader concept that encompasses both
negligence, which is unintentional, and deliberate or intentional wrong acts. However, not every
mistake or error constitutes negligence or malpractice. When a treatment or diagnosis does not
turn out well, the physician or advanced practice provider has not necessarily been negligent.
Rather, they must act within the standard of care appropriate for their profession, with attention
to their special field or their particular level of medicine. All healthcare providers are held to this
same standard in their field of practice. Physicians and healthcare workers who fail to act
reasonably in the same circumstances are negligent. Medical malpractice often involves more
than just a poor outcome for the patient. It may reflect an inexcusable lapse in judgment by a
healthcare professional that results in serious injury and even death for the patient.

There is a lot of debate about the number of preventable deaths in hospitalized patients. The
Agency for Healthcare Research and Quality states “The number of deaths due to preventable
harm is controversial. Although some analyses claim that hundreds of thousands of patients
may die every year in the U.S. due to medical errors, these estimates rely on flawed
methodology and are not supported by more rigorous studies. … At a national level, the toll is
clearly in the tens of thousands of deaths per year, perhaps more.” Medication errors are one of
the leading types of medical errors. Medical malpractice claims may arise when a physician acts
in an unacceptable manner when compared with how other physicians with similar training
would act. However, as already noted, an unsuccessful or unanticipated result from a surgical
procedure or medical treatment does not, in itself, mean that malpractice has been committed.
Med TipThe best way for you as a healthcare professional to avoid errors is to always
double-check all orders and healthcare decisions that physicians and other healthcare
professionals make. If you don’t understand the physician’s orders or if they seem improper,
convey your questions to the physician immediately, before carrying out the orders. Technology
is also helping by providing electronic prescriptions in place of handwritten ones; this has
eliminated many medication errors. Most important, never perform a procedure for which you
are not trained.

he Tort of NegligenceA tort is a breach of duty that causes injury, damage, or a wrong to a
person or property, excluding breach of contract. Chapter 2 discusses the many injuries that are
covered under tort law, including assault, battery, false imprisonment, defamation of character,
fraud, and invasion of privacy. As healthcare professionals, many of us have observed serious
torts occurring among friends and our own families by the negligent behavior of other healthcare
professionals, including [Link] discussion about torts is important for us to thoroughly
understand because, as healthcare professionals, we cannot even imagine causing injury to our
[Link] actions and inactions (omissions) can be considered negligence. Failure to
provide clear instructions regarding treatment or a medication’s use is an omission that could
result in a disastrous outcome for the patient. Providing incorrect information is also considered
negligence. Med TipRemember that you can be sued even if you are right. Patients can be
injured through no fault of the medical personnel. The lawsuit brought by the injured patient may
or may not be successful.

Professional liability malpractice claims are classified in three ways: malfeasance, misfeasance,
and nonfeasance. These terms all stem from the word feasance, which means doing an act or
performing a duty.

Malfeasance refers to performing a wrong or illegal act. For example, it is malfeasance for a
nurse or medical assistant to prescribe a medical treatment or medication. Only the physician or
advance practice provider can prescribe medications and treatments. Medical personnel must
be especially aware of malfeasance when they offer advice, such as “Try giving your child
aspirin to bring down the fever.” The term malfeasance is often used when a public official has
done something illegal.

Misfeasance is the improper performance of an otherwise proper or lawful act. An example of

misfeasance occurs when a poor technique is used by a nurse, medical assistant, or
phlebotomist to perform a venipuncture and the patient suffers nerve damage.
Nonfeasance is the failure to perform a necessary action. For instance, it would be nonfeasance
if a medical assistant or nurse is trained in cardiopulmonary resuscitation (CPR) but does not
administer this life-saving technique when a patient collapses in the physician’s waiting room
and requires CPR.

In order to obtain a judgment for negligence against a physician (defendant), the patient
(plaintiff) must be able to show all four of what are called the “four Ds”—duty, dereliction or
breach of duty, direct or proximate cause, and damages or injuries.

DutyDuty is the responsibility established by the provider–patient relationship. It is the obligation

that one person has to another person—for instance, not to perform a medical procedure that is
known to be harmful to a patient. The patient must prove that a relationship had been
established. When the patient has made an appointment and has been seen by the provider, a
relationship has been established. Further office visits and treatment also establish that the
provider has a duty or obligation to the patient (Figure 6.2). There is also a duty to warn the
patient of problems that could be associated with treatments or medications. A special type of
duty arises, for example, when a patient tells a psychiatric counselor they intend to harm
another person. In this situation, the psychiatric counselor has a duty to warn the other person.

Figure 6.2

Healthcare professionals have a duty or obligation to their patients

Source: Photoroyalty/Shutterstock

The duty of “due care” uses the reasonable person standard, which means that everyone has a
duty to act as a reasonable, prudent person of average intelligence would under the same or
similar circumstances. Those in special professions, such as physicians, physician assistants,
nurses, and medical assistants, are held to a standard of care exercised by similar professionals
in the same or a similar community or geographic area. This standard never varies for a
particular professional, so a physician is held to the same standard as another reasonable and
prudent physician, a nurse is held to the same standards as other nurses, and so on.

There is a duty to care for a hospitalized patient after the patient enters the nursing floor. A
phone call from admitting or the emergency department, stating “You are getting a new patient,”
usually precedes the patient’s arrival. If all the beds are filled on the nursing unit, the nurse may
state, “We don’t have room for a new patient.” But after the patient arrives on the nursing unit,
there is an obligation, or legal duty, to care for that patient. You should identify the patient both
by stating their name and by examining any other identification, such as an arm band or a
driver’s license. Patients also need to state their names if they are able to. Be cautious because
patients with dementia, older adults, or those with whom you don’t share a language may just
agree with what you are saying. Use discretion with patient sign-in sheets to protect
confidentiality.

Dereliction of Duty or Breach of DutyBreach, or neglect, of duty (also called dereliction of duty)
is a provider’s failure to act as any ordinary and prudent provider (a peer) would act in a similar
circumstance. To prove dereliction or neglect of duty, a patient would have to prove that the
provider’s performance or treatment did not comply with the acceptable standard of care. For
example, if a surgeon does not properly inform patients about all the risks associated with
surgical procedures, then the surgeon has neglected, or breached, their duty to the patients. If
the outcome of a procedure is one that the patient did not anticipate or was not informed about,
then this may constitute grounds for a lawsuit claiming dereliction of duty.

Direct or Proximate CauseDirect cause is the continuous sequence of events, unbroken by any
intervening cause, that produces an injury and without which the injury would not have occurred.
Direct or proximate cause means that the injury was proximately or closely related to the
physician’s (defendant’s) negligence. It does not necessarily mean the closest event in time or
space to the injury, and it may not be the event that set the injury in motion. Proximate cause
means that there were no intervening forces between the defendant’s action(s) and the plaintiff’s
(patient’s) injury—hence a cause-and-effect relationship. Proximate cause of injury requires the
patient to prove that the provider’s or agent’s (such as a nurse’s) dereliction of duty was the
direct cause for the injury that [Link] example of proximate cause would be if a
phlebotomist or laboratory technician, who works under the direct supervision of a doctor,
performs a venipuncture on a patient to obtain a blood sample, and subsequently the patient
complains of a loss of feeling in the arm that was used for the venipuncture. To prove proximate
cause, the plaintiff (patient) would have to prove that there was no intervening cause, such as a
tennis injury or damage from an accident, that occurred between the time the blood was drawn
and the time the nerve damage happened. Med TipProximate cause refers to the last negligent
act that contributed to a patient’s injury, without which the injury would not have
[Link] OF EVIDENCEOne side of a case must demonstrate a greater
weight of evidence than the other side. The plaintiff must prove that it is more likely than not that
the defendant, for example, the physician, has caused the injury. If the defendant demonstrates
more convincing evidence than does the plaintiff, then the case will be found for the defendant.
If both sides demonstrate equally convincing evidence, then the case will usually be found in
favor of the defendant. Remember that the burden of proof remains on the plaintiff (also defined
in Chapter 2).

Med TipTo have a preponderance of evidence to find in favor of the plaintiff, the jury believes
that it is at least 51 percent likely the defendant caused the [Link] IPSA LOQUITURThe
doctrine of res ipsa loquitur, meaning “the thing speaks for itself,” applies to the law of
negligence. This doctrine tells us that the breach (neglect) of duty is so obvious that it doesn’t
need further explanation, or it “speaks for itself.” For instance, leaving a sponge in the patient
during abdominal surgery, dropping a surgical instrument onto the patient, and operating on the
wrong body part are all examples of res ipsa loquitur. None of these would have occurred
without the negligence of someone. Res ipsa loquitur, often called res ipsa or RIL, is so obvious
that expert witnesses are usually not [Link] the doctrine of res ipsa loquitur, an
exception to the burden of proof rules occurs because the burden of proof now falls to the
defendant, who must prove that, based on evidence, the patient’s injury was not caused by
negligence. The judge decides in pretrial hearings if a case can be tried on the basis of res ipsa.
Three conditions must be present:
The injury could not have occurred without negligence.

The defendant had total and direct control over the cause of injury, and the duty was within the
scope of the duty owed to the patient or injured party.

The patient did not, and could not, contribute to the cause of the injury.

For example, a patient under anesthesia when the alleged injury occurred could not have
contributed to the cause of the injury. However, if, before receiving the anesthetic, the patient
neglected to inform the surgeon about a condition that could be adversely affected by the
procedure or anesthesia, such as a diabetic condition or eating a full meal, then this may rule
out res ipsa loquitur because the patient may have contributed to the cause.

In order to have a civil malpractice lawsuit, the plaintiff (patient) must show that

a relationship had been established between the patient and the provider,

this relationship established a duty of the provider to the patient,

this duty required the provider to perform at a particular standard of care,

the duty was breached by the provider,

the patient received an injury as a result of the provider’s breach of duty, and

the provider’s breach of duty was the proximate cause of injury to the patient.

DamagesDamages refers to compensation awarded to the plaintiff for any injuries caused by
the defendant. Patients may seek damages (recovery or compensation) for a variety of injuries,
including the following:

Permanent physical disability

Permanent mental disability

Loss of enjoyment of life

Personal injuries

Past and future loss of earnings

Medical and hospital expenses

Pain and suffering

If the patient does not receive any injury, then there is no negligence case. For example, if the
risks involved in having a particular surgical procedure, such as the risk of infection, were not
explained to a patient and the patient did not suffer an injury (infection, in this case), then there
is no negligence case.

The court may award compensatory damages to pay for the patient’s injuries. Other monetary
awards fall into the categories of special compensatory, punitive, and nominal damages. Some
states have placed a limit, or cap, on the amount of money that can be awarded in a medical
malpractice [Link] damages are payments intended to compensate (make up) for
the actual loss of income, emotional pain and suffering, or injury suffered by the patient. These
losses are past, current, and future and include lost wages and profits. The court will consider
the amount of physical disability, loss of earnings to date, and any future loss of earnings to
determine the amount of the monetary award. Special compensatory damages refers to a
monetary award to compensate the patient for losses that were not directly caused by the
negligence. For example, the patient might incur additional medical expenses for physical
therapy to regain strength after being bedridden because of the original injury. Noneconomic
reasons include disfigurement, disability, and loss of consortium (loss of ability to have normal
sexual intercourse).In some states, the plaintiff’s attorney may receive as much as one-third of
the payment, plus expenses. In some states, where there is no cap, or limit, on the amount of
money that can be awarded, the plaintiff may receive millions. In some cases, these large
payments have meant that physicians’ medical malpractice insurance premiums have increased
to a point where physicians cannot afford them and, thus, have had to leave their
[Link] damages, also called exemplary damages, are monetary awards by a court to
a person who has been harmed in an especially malicious or willful way. This monetary award is
not always related to the actual cost of the injury or harm suffered. Its purpose is to serve as
punishment to the offender and a warning to others not to engage in malicious behavior.
Punitive damages can result in a large cash award. The punitive awards have been growing
substantially over the past decade and may reach into the millions. For example, a person who
practices medicine without a license may receive punitive damages in order to serve as a
warning to that person and others that this is an especially harmful [Link] damages
refers to a slight or token payment to a patient to demonstrate that, while there may not have
been any physical harm done, the patient’s legal rights were violated. The award may be as little
as one dollar. However, most states currently require actual damages in the form of
compensatory payments rather than just nominal damages or [Link] DEATH
STATUTESIf a patient’s death has been caused by the provider’s negligence, the deceased
person’s dependents and heirs may sue for wrongful death. Some states have wrongful death
statutes that allow the deceased person’s beneficiaries (estate) and dependents to collect
money from the offender to compensate for the loss of future earnings to the estate. A plaintiff in
a wrongful death suit does not have to prove that he or she was completely dependent on the
deceased person for support but only that the death resulted in a financial loss. To win such a
case, the plaintiff must prove that the defendant’s actions were the “proximate,” or immediate,
cause of [Link] malpractice cases are state specific. Some states, such as Iowa,
Missouri, and Pennsylvania, allow the surviving spouse and children of a wrongful death victim
to sue for compensatory damages for the pain and suffering they experienced upon the death of
their loved one. However, many states have placed a cap on the amount of money that can be
awarded in wrongful death [Link] are no federal malpractice laws. In common law
practice, the government is immune from wrongful death suits, although some state
governments now allow suits brought against state employees.

FraudUnlike negligence, which is an unintentional action that could lead to patient injury, fraud is
the deliberate concealment of the facts from another person for unlawful or unfair gain.
Healthcare fraud includes a wide range of illegal actions: illegal billing for services that may or
may not have been rendered; receiving kickbacks for making referrals for Medicare and
Medicaid patients; dishonesty when conducting medical research; embezzlement, particularly in
the medical office; and the illegal sale of [Link] fraud is one of the most rapidly
expanding illegal industries. This is especially true in the medical office. Therefore, it is
paramount that medical assistants remain vigilant when performing their duties. There have
been many medical office cases in which medical assistants were requested by their
physician/employers to perform fraudulent acts. In every case, the medical assistant could have
refused to perform the actions that were either beyond their scope of practice or obviously
fraudulent.

The civil fraud section of the Department of Justice allows provisions under the False Claims Act
(FCA) for the government to recover funds in the healthcare area. The government need only
prove a deliberate false claim and may obtain fines and penalties as well as damages. The FCA
states that the perpetrator must have knowledge of what they have done, although it does not
clearly define how to determine the “knowledge.” Med Tip“We become the choices that we
make.”—St. Thomas Aquinas

In the ongoing case of United States v. Jamil, et al., the U.S. Department of Justice reported in
February 2023 that two people from Oakland County, Michigan, who owned and operated
several home health agencies in the Detroit area, submitted approximately $50 million in
fraudulent claims for home healthcare services to Medicare. They also paid bribes to
co-conspirators. A total of 23 people were allegedly involved in billing Medicare for unnecessary
medical services and for services that were never provided. One was a registered nurse who
fraudulently billed Medicare for services he had not provided, and he falsely certified patients as
“homebound.”

In another wide-ranging case concluded in 2022, United States of America v. Steven Monaco,
Daniel Osw Ari, Michael Goldis, and Aaron Jones, two physicians, a physician assistant, and a
medical assistant (among many others) pled guilty or were convicted of an elaborate plan to fill
prescriptions for unnecessary compound medications that cost thousands of dollars per month.
The medical assistant, who was 25 at the time of the charges, was sentenced at age 28 to two
years in prison. The medical assistant was paid by a pharmaceutical sales rep to identify
patients whose insurance would cover the expensive compound drugs. He would then forge the
physician’s names on the unnecessary prescriptions. The physician assistant was convicted of
signing off on prescriptions for people who had not consulted with himself or the physician.

Med TipRationalizing (wrongly justifying) unethical behavior can take the form of convincing
yourself that it’s not really illegal . . . or that no one will find out . . . or that the organization (your
employer) will protect you. This type of rationalization is not only wrong, it can get you into deep
[Link] of the most frequently cited areas of medical-related fraud include the following:

Billing fraud, which includes billing for services not needed, billing for nonexistent patients, or
billing for products not needed or supplied

Overutilization of services such as treatments, including office visits, laboratory tests, therapy,
and prescriptions that are not necessary

Pharmacy fraud of billing for prescriptions and supplies that were not delivered or providing
lower-priced generic medications and billing for higher-priced medications

Durable equipment and supplies, which includes billing the patients for equipment, such as
wheelchairs and other devices, and unnecessary supplies

Legal scams such as workers’ compensation fraud and false injury claims

Kickbacks, which are improper payments in order to induce physicians and other healthcare
professionals to refer patients to a facility such as a hospital or insurance company

Med TipAn allied health professional must use caution when submitting patient claims for
medical reimbursement. Filing a false claim for programs such as Medicare or Medicaid is a
federal crime. The employee’s physician/employer could be severely fined and even lose their
license for this type of fraudulent act.

Office of the Inspector GeneralOne of the major players in the war against healthcare fraud,
such as false insurance claims, is the Office of the Inspector General (OIG). This office was
created to protect the programs under the Department of Health and Human Services (HHS),
such as Medicare and Medicaid, from fraudulent activities. For example, healthcare payers will
use the diagnosis and procedure codes submitted by billing and coding personnel when making
a decision to pay or deny a claim. It is important to determine if an incorrect coding is the result
of an error or a deliberate fraud. In a case such as this the OIG, if consulted, would provide an
advisory opinion. If the coding was found to be in error, then it would have to be corrected. The
party requesting the OIG’s opinion could be prosecuted if the error is not corrected. The OIG
reports problems with healthcare programs to the secretary of state and Congress and makes
recommendations on how to correct them. The Office of Counsel to the Inspector General

provides legal services to the OIG,

represents the OIG in civil cases tried under the False Claims Act,

imposes financial penalties on healthcare providers found guilty of fraud, and

issues fraud alerts.

There are numerous federal statutes to avoid waste, fraud, and abuse in the healthcare industry.
The major areas of concern are the following:

Additional costs to federal healthcare programs such as Medicare and Medicaid

Quality of patient care

Access to care

Freedom of choice

Competition

Healthcare providers’ abuse of professional judgment

In general, most of the federal cases revolve around money—wrongful receipt of state or federal
funds, presenting false claims for reimbursement, or improper referral relationships (kickbacks
and discounts). In many cases there have been stiff fines and/or criminal penalties. False
claims, which result in the loss of billions of dollars each year, carry a stiff fine. In addition, the
provider can be found liable for up to three times the amount lawfully claimed. Because office
staff, including nurses, are often the persons designated to submit the insurance claims for
payment, they need to be fully aware of the consequences of providing false [Link]
federal government’s definition of what constitutes a “false claim” includes the following:

A claim for payment for services or supplies that were never provided

A claim using a diagnosis code other than the true diagnosis code to obtain reimbursement for
services

A claim indicating a higher level of service than that which was provided

A claim for a service that the provider knew was not necessary

A claim for services provided by an unlicensed individual

An example of a false claim is a podiatrist who knowingly submitted claims to Medicare and
Medicaid for “nonroutine” surgical procedures when what he had actually done was trim the
toenails and remove corns and [Link] OIG accepts public comments relating to alerts.
The address is Department of Health and Human Services, Office of Inspector General, 330
Independence Avenue SW, Room 5246, Washington, DC 20201. Med TipRemember that every
person has the right to say “no” when asked to perform an activity that is unethical, illegal, or
against his or her own value system.

Violation of StatutesEvery medical provider, including physicians, hospitals, nursing homes, and
pharmacists, should be familiar with statutes that affect their particular discipline. For example,
in the case of Osborne v. McMasters, a drugstore clerk employed by McMasters sold a bottle
without a “poison” label to Osborne who then unknowingly took the poison and died. The poison
label was required by law (statute). A verdict was returned against the defendant who then
appealed the decision. The original judgment was held (affirmed) because the statute required
McMasters to use reasonable care to protect customers from taking the wrong drug. This was
found to be a breach of statutory duty that resulted in injury to the plaintiff and was the
proximate cause of death to Osborne (Osborne v. McMasters, 41 N.W. 543 Minn. 1889). This
example, while quite dated, is an excellent example of the need to always use extreme care
when dispensing medications to patients.

Immunity for Charitable OrganizationsIn the past, under common law, tort immunity was granted
to all charitable organizations on the theory that the charity was only working for the public good
and not for profit. However, this immunity has now been rejected in almost all states. The more
current belief is that charity is now a large-scale operation and should also include the expense
of liability insurance as part of doing business.

Professional LiabilityIn the largest sense of the term, everyone is legally responsible or liable for
their own actions. All homeowners, business owners, and healthcare employers are responsible
for accidents and other harmful acts that take place on their property or premises.

Civil Liability CasesAs already discussed, physicians and other healthcare professionals may be
sued under a variety of legal theories, including negligence and respondeat superior.
Unfortunately, a fear of such lawsuits has influenced the practice of medicine. Some physicians
and hospitals have been reluctant to withdraw or withhold treatment at the specific directive of
the patient or family. A clearly stated refusal for continued treatment by an informed patient
should relieve the physician and hospital of the duty to continue treatment. In fact, if treatment is
continued after it has been refused by the patient, the healthcare provider could be liable for
battery. In a 1990 case, a federal appellate court ruled that a physician who implanted a
Hickman catheter into a minor child, based on a court order, could be sued for the death of the
child two weeks later from a massive pulmonary embolus. The court ruled that the physician
committed battery because the court order was not properly obtained and, therefore, was
invalid. The father of the child, who had opposed the Hickman implant, was eventually awarded
$2 million (Bendiburg v. Dempsey, 19 F.3d. 557, 11th Cir. 1994).

Med TipMedical personnel must listen to and respect the patient’s wishes.

Physical Conditions of the PremisesMedical offices, clinics, and hospitals are required to
exercise the same standard of care as any other business that has a public facility and grounds.
An institution may be liable when regulatory standards have been violated, such as when an
accident occurs in a clinic that has not followed regulations for maintaining a safe environment
for patients. The institution may not be liable, however, if the plaintiff was aware of a situation
that could cause an injury and then chose to ignore it. For example, if someone walks on a wet
floor in spite of the caution sign, it is at their own risk. Med TipLawsuits involving the physical
condition of hospitals and other medical facilities have involved such cases as broken steps,
malfunctioning elevators and doors, and defective carpets. Every staff member must take
responsibility for reporting and correcting defects that could cause [Link] the case of Rowland
v. Christian, the plaintiff was injured by a cracked water faucet handle on Christian’s property.
The issue in this case was to determine if an owner, who is aware of a concealed condition that
presents an unreasonable risk of harm to others, must warn of the danger or repair the
condition. The court found in favor of the plaintiff by ruling that a landowner owed a duty of
ordinary care to any persons who are invited onto the property as well as trespassers. The
result of this case encourages owners of buildings, such as hospitals, medical offices, and
clinics, to warn of conditions, such as wet floors or construction (Rowland v. Christian, 443 P.2d
561, 1968).

Illegal Sale of DrugsIn most healthcare settings, access to controlled substances such as
morphine and fentanyl may be available. One of the reasons to carefully screen all healthcare
employees before employment is to determine if there is any history of drug possession or
abuse. There are documented instances of physicians and employees, ranging from nurses to
housekeeping personnel, who have been found guilty of stealing narcotic drugs from the
workplace and either using them personally or selling them. Easy access to narcotics, coupled
with a lack of proper security measures, can result in the loss of a license, severe penalty, and
even prison for the [Link] some cases, narcotics that were meant for an ill patient have
been stolen and then documented as having been administered to the patient. The patient
suffers as a result of this deception. Med TipIt’s important to always be alert for any indications
of drug misuse among coworkers. Even though it may be difficult to report a coworker’s drug
use, it is necessary in order to get help for them and to protect patients and the reputation of the
facility.

Promise to CureA promise to cure a patient with a certain procedure or form of treatment is
considered under contract law rather than civil law (Figure 6.3). In a Michigan case, a physician
promised to cure a bleeding ulcer, and even though the physician was not negligent in the care
of the patient, he was found liable for breach of contract when the treatment was unsuccessful.
After this case, many states passed laws requiring that all promises to cure must be in writing
(Guilmet v. Campbell, 385 Mich. 57, 188 N.W.2d 601, 1971).

Figure 6.3

Choose your words carefully when speaking with patients

Source: Shutterstock

Med TipAlways use caution when speaking to patients. A comment such as “I’m sure you’ll be
fine” could be taken as a verbal contract.

Law of AgencyThe law of agency governs the legal relationship formed between two people
when one person agrees to perform work for another person. For instance, in a
physician-owned office, the list of agents for the physician includes physician assistants, nurses,
medical assistants, technicians, and even the cleaning staff if they are hired and paid directly by
the physician. In order to protect the physician/employer from liability for negligence under the
doctrine of respondeat superior, every healthcare professional should do the following:
Have a written job description that clearly defines their responsibilities, duties, and skills
necessary for the job; if there is no job description in place, ask for one to be written

Use extreme care when performing their job

Carry out only those procedures for which they are trained

Be honest about any errors or inability to perform a procedure

One exception to the law of agency is the relationship between the pharmacist and the
physician. A pharmacist is not an agent of the physician because the pharmacist is not hired,
fired, or paid directly by the physician. Therefore, in this case the law of agency, or respondeat
superior, has not been established.

Altered Medical RecordsThe Federal Rules of Evidence allow paper medical records and
electronic health records (EHRs) into courts as evidence under the Uniform Business Records
Act. Any time that a medical record has the appearance of being altered or changed, it causes
suspicion about the defendant’s motives. The defendant, at the advice of their attorney, may end
by settling a lawsuit in which there was no malicious intent to lie but simply a poor charting
technique. A settlement, or agreement between both parties outside of the courtroom, may
result in a payment or other form of satisfaction. A settlement does not indicate the guilt or
innocence of the defendant. It usually indicates that the defendant believes that they may not
win the lawsuit. Med TipWhen charting in an electronic health record, follow your agency’s
protocols. When charting on paper, never completely obliterate any notation on a chart. If a
chart note is placed on an incorrect chart, then cross through the notation with one line and
state “Incorrect Chart.” Always add your name after the [Link] is poor technique to leave
spaces on paper charts so that another person can add statements later. While this may be
done simply because another staff member was not ready to chart, it gives the appearance that
information was added back into the chart at a later date in order to attempt to deceive. Many
electronic health records have protective barriers to help eliminate this problem.

Deliberate attempts to alter the medical record, to fabricate a medical record with someone
else’s name, or to lose a medical record can result in a defendant, such as a physician or
hospital, losing a negligence case. In some of these cases, the physician or hospital had no
knowledge that the record was being altered. However, under the principle of respondeat
superior, the employer is held responsible for the employee’s action. Note that radiology
information systems are part of the medical record, and they should never be altered in any way.

Some lawyers, especially after losing a case, have been known to go back several weeks later
to request another copy of the medical records. They will check to see if the record has been
altered in any way since the trial ended. In one case, an LPN was found not to be negligent in
the first case, but was found guilty upon appeal when the attorneys noted that the medical
record had been changed after the trial ended. Even though the LPN had not made any of the
changes, and was apparently not guilty of the original charges, nevertheless, upon appeal the
original decision was overturned. The judge wonders “why alter the record if you are innocent?”
Med TipNEVER alter a medical record.

Who Is Liable?Under the doctrine of respondeat superior, or “let the master answer,” discussed
in Chapter 3, the employer is liable for the consequences of the employee’s actions committed
in the scope of employment. The employer may not have done anything wrong yet still is liable.
For example, if a medical assistant in a physician’s office injures a patient while taking a blood
sample, the physician/employer can be liable for the action even if the medical assistant was
properly selected, well trained, and suitably assigned to the task. Respondeat superior does not
assign responsibility to anyone other than the employer. Therefore, the immediate supervisor of
the medical assistant is not the responsible party; the employer of both the medical assistant
and the supervisor is [Link] doctrine of respondeat superior was implemented for the
benefit of the patient, not the employee. It is not meant to protect the employee. Thus, the
patient can sue both the physician and the employee. If both are found liable by the court, the
plaintiff may seek to collect money from either party; however, the plaintiff cannot collect twice.
The employer, if not at fault but forced to pay the plaintiff, can turn around and sue the employee
for those damages (St. John’s Reg. Health Ctr. v. American Cas. Co., 980 F.2d 1222, 8th Cir.
1992).

Strict liability, in law, is the concept that a person is liable for consequences flowing from an
activity even if the person doing the activity is not at fault. Product liability is a type of strict
liability in which the manufacturer or seller may be liable for any injury caused by a defective or
hazardous product it makes or sells. However, in a hospital case in which a patient was injured
when his hospital gown caught fire, the court found the hospital also liable because it introduced
the harmful product into the stream of commerce.

Liability InsuranceIn order to protect against the risk of being sued and ultimately held liable for
the plaintiff’s injuries, most physicians and advance practice providers carry liability and
malpractice insurance. Liability insurance is a contract by which one person promises to
compensate or reimburse another person who suffers a loss from a specific cause or a
negligent act. Many insurance plans are contingent on the insured person’s practicing good
safety habits. For example, liability coverage for buildings may be contingent on having a good
fire alarm [Link] most cases, employers have a general liability policy to cover acts of their
employees during the course of carrying out their duties. Some physicians carry a rider, or
addition, to the policy that covers any negligence on the part of their assistants. For example, if
a patient falls and breaks a bone while getting off the exam table, even though a medical
assistant had warned the patient to sit up slowly and use the footstool, the insurance company
might settle, or come to an agreement about the case, even though negligence was not
[Link] two major types of liability insurance are claims-made insurance and occurrence
insurance.

Claims-made insurance covers the insured party for only the claims made during the time period
the policy is in effect (or policy year). For example, if an injury occurred in one year but the claim
for liability insurance coverage was made a year later, then the claim would be denied. It is,
therefore, important with claims-made insurance to file claims reports in a timely manner,
especially by the time of the policy’s year end.
Occurrence insurance (also called claims-incurred insurance) covers the insured party for all
injuries and incidents that occurred while the policy was in effect (policy year), regardless of
when they are reported to the insurer or the claim was made. Under this type of policy, if an
injury occurred in one year when the policy was in effect, but the claim against the physician
was made two years later, the occurrence liability insurance would cover the claim. With
occurrence insurance, it is important to clearly document when an event took place.

Malpractice InsuranceBecause physicians and advance practice providers treat the human
body, not all medical outcomes are predictable or desirable—sometimes through no fault of the
provider. Therefore, healthcare providers carry malpractice insurance to cover any damages
they must pay if they are sued for malpractice and lose. All licensed healthcare professionals,
such as nurses and pharmacists, should also carry malpractice insurance. Unlicensed
healthcare personnel, such as medical assistants, are usually covered under their
physician/employer’s policy. However, because of the litigious nature of today’s medical
practice, many medical assistants also carry their own malpractice insurance coverage. Most
states require that physicians carry malpractice insurance. In addition, nurses and other
healthcare employees may be required to have their own individual [Link]’
malpractice insurance is expensive, and the cost varies widely depending on the medical
specialty and the state in which the physician practices. For example, in 2020, annual premiums
for internal medicine specialists ranged from $8,000 (in California) to $51,000 (in Florida). For
obstetrician/gynecologists, rates in those same two states were $49,000 and $200,000,
respectively. As already mentioned, some physicians carry a rider to these policies that covers
malpractice suits based on injuries caused by employees and assistants during the course of
carrying out their duties. Such coverage is important, again, because of the doctrine of
respondeat superior.

Med TipMalpractice is professional misconduct or a demonstration of an unreasonable lack of

skill with the result of injury, loss, or damage to the [Link] Defensive
MedicineUnfortunately, many physicians find themselves in the position of practicing a type of
medicine that will help to protect them from lawsuits. This is referred to as defensive medicine. It
means that more and more tests and procedures will be ordered for each patient in order to
avoid a lawsuit. The result of this practice is twofold: The patient will have to undergo additional,
and often painful, tests and procedures, and the cost of healthcare will increase. In addition, the
use of specialists has greatly increased. Some medical specialties such as orthopedics and
obstetrics are especially prone to litigation. The result is that, in some parts of the country, there
is now a lack of specialists, such as obstetricians, because the cost of their malpractice
insurance has become too expensive. The use of specialists has also meant that, in some
cases, there is a reduced relationship between the primary care provider and the patient,
resulting in a greater propensity for patients to sue if displeased with their medical
[Link] medicine becomes problematic if a physician becomes reluctant to attempt
some of the more risky, yet potentially effective, procedures for fear of a lawsuit. A more
conservative approach might result in a poor outcome, and even death, of the patient.A 1997
study by Levinson et al. attempted to determine whether any communication behaviors by
physicians were associated with the frequency of malpractice claims. They found that primary
care physicians who communicated well with their patients were much less likely to be sued.
Specifically, these physicians spent time orienting their patients so they would know what to
expect, used laughter and humor, solicited patients’ opinions and feedback, checked their
understanding, and encouraged them to [Link] are aware of the need to hire
employees who are skilled in their professional duties as well as able to project a warm and
caring attitude toward their patients. In some cases, an unhappy employee will reflect negatively
on a patient’s attitude toward the physician even if they are quite [Link] it is usually a
physician who practices defensive medicine, it can often be another healthcare professional
who documents what has been done. Narrative documentation that is performed once a shift in
either a hospital or nursing home does not always convey exactly what was done for the patient.
For example, stating in the medical record “Patient required one-on-one monitoring” is clearly
inaccurate because it is not possible unless there is a person assigned to only that patient. Med
TipAlthough there is not a law that states, “If you didn’t document it, you didn’t do it,” it’s difficult
to defend a practice that isn’t documented.

Alternative Dispute ResolutionUsing methods other than going to court to solve civil disputes is
called alternative dispute resolution (ADR). The process of arbitration, which involves submitting
a dispute to a person other than a judge, is becoming a popular means for resolving a civil
dispute. This third person, called an arbitrator, issues a binding decision after hearing both sides
present witnesses and facts or evidence relating to their cases. However, for the arbitrator’s
decision to be binding, both parties (the patient and provider) must agree ahead of time to
accept the decision of the arbitrator. The selection of an arbitrator must be agreed upon by both
sides. This can be a time-consuming [Link] addition to arbitration, other methods include
mediation and a combination of the two methods referred to as med-arb. Mediation involves
using the opinion of a neutral third person for a nonbinding decision. The mediator listens to
both sides of the dispute and then assists the parties in finding a solution. Using arbitration,
mediation, or a combination of the two methods for deciding a civil case can save money and
time.

Liability of Other Health ProfessionalsNot all cases of employee negligence are covered under
the doctrine of respondeat superior. Also, physicians are not the only medical professionals
liable for negligence—nurse practitioners and physician assistants work independently in many
states, and they are also liable for negligence. It is important to note that physicians retain
responsibility for the mid-level healthcare professionals working for them. The following
discussion summarizes some cases illustrating negligence lawsuits against other healthcare
professionals.

Physician Assistants The role of the physician assistant, as determined in the 1970s, was meant
to assist a physician in the primary care of a patient. Today, many physicians hire a licensed PA
to help them with their patient care. The physician (employer) provides oversight of the PA’s
practice. The PA is able to legally perform more procedures than a registered nurse, but PAs
cannot perform all the duties of a physician. A PA, in most states, is able to assess and evaluate
patients’ conditions, perform physical examinations, suture wounds, change dressings, and
prescribe and administer medications. However, a problem can result when there is no
physician oversight, such as when an HMO or a prison hires only a [Link] the case of Mandel v.
Doe, the county entered into a “Memo of Understanding” with its health department to provide
medical care to the inmates of the county prison. This plan called for the PA to be supervised by
a doctor, but the practice developed to the point where the PA was subject to no supervision or
review. The court found that there was no final review of the PA’s actions, therefore, the county
was liable for any negligence on the part of the PA as it had given the PA the power to act
(Mandel v. Doe, 888 F.2d 783, 11th Cir., Cal. 1989).

In November 2022, $27 million was awarded to a man who went to an urgent care clinic with
symptoms of high fever, disorientation, an abnormal heart rate, and irregular breathing. The
physician assistant in charge diagnosed him with the flu, despite testing negative for flu, and
sent him home with Tamiflu and pain relievers. When the patient went to the emergency
department a few days later, he was diagnosed correctly with bacterial meningitis, which should
have been diagnosed by the physician assistant earlier. The patient was admitted to the ICU,
put in an induced coma, suffered multiple strokes, and was left with permanent hearing loss,
nerve damage, and brain damage (Joseph Dudley, et al. v. Central Iowa Hospital Corp, et al.).

Nurse PractitionersAs discussed in Chapter 3, nurse practitioners have varying scopes of

practice depending on the state in which they are licensed to practice. Some states allow full
practice; others allow reduced or restricted practice. Nurse practitioners need to be very careful
not to exceed the scope of practice in their state.A woman in Pennsylvania was awarded $18
million after a nurse practitioner failed to diagnose her breast cancer. After finding a lump in her
breast, the patient saw a nurse practitioner twice in March 2018 but was told that it was benign
and was not sent for further testing or imaging. Nine months later, she was diagnosed with
aggressive breast cancer that had spread to her lymph nodes. The patient had a bilateral
mastectomy and chemotherapy. If she had been diagnosed when she first saw the nurse
practitioner, she would likely have been treated with a lumpectomy and would have had much
better long-term survival prospects. The nurse practitioner was held to be negligent for not
ordering breast imaging, leading to a delay in treatment and a much worse outcome for the
patient (Downes v. Carpenter, No. 2019-12863-PL (Pa. Ct. Com. Pl. Chester County)).

NursesWhen nurses exceed their scope of practice, they violate their nursing license and may
be performing tasks that are reserved by statute for another healthcare professional, such as a
physician. Because of the shortage of nurses, their responsibilities are ever-increasing, which
may lead to actions that result in malpractice. However, nurses have not generally been
involved in lawsuits for exceeding their scope of practice, or license, unless they also acted
negligently.

There have been many lawsuits against hospitals in which nurses were cited for errors, failing to
perform CPR, and failing to alert the physician regarding their patient’s condition. A research
study of 43,329 nurses conducted by the University of Pennsylvania found that, in many cases,
nurses felt overwhelmed and worried about the quality of care they provided to their patients.
Some of this “burnout” is blamed on the shortage of [Link] supervisors have been
found negligent for not establishing procedures for the nursing staff that are designed to protect
patients. In an Illinois case, the director of nursing was found negligent for failing to develop
standards to prevent accidents involving excessive temperatures while bathing patients (Moon
Lake Convalescent Center v. Margolis, 435 N.E.2d 956, Ill. App. Ct. 1989).
In Quinby v. Morrow, a patient recovered damages against a surgeon, the instrument nurse, and
the hospital for a burn suffered when a hot metal gag was placed in the patient’s mouth, causing
third-degree burns (Quinby v. Morrow, 340 F.2d 584, 2d Cir. 1965).

A nurse was held liable in a Massachusetts case in which a patient who had received a strong
sleeping medication fell out of the hospital bed, fracturing her hip. The nurse had left the
bedside rails down and thus had failed to exercise due care (Polonsky v. Union Hospital, 418
N.E.2d 620, Mass. App. Ct. 1981).

Allied Health ProfessionalsDental AssistantsIn a South Carolina case, a patient sued a dental
clinic and a dental assistant after the assistant, who was not supervised by the dentist, cut the
patient’s tongue with a sharp instrument. The court held that the dental assistant performed a
breach of duty to the patient. The clinic was also held liable (Hickman v. Sexton Dental Clinic,
P.A. 367 S.E.2d. 453, S.C. CT. App. 1988).

Laboratory TechniciansHealthcare employees who make repeated errors are not only liable for
their errors but also subject to discharge. For instance, in Barnes Hospital v. Missouri
Commission on Human Rights, a hospital fired a laboratory technician for inferior work
performance when he mismatched blood on three occasions. The employee alleged that racial
discrimination was the reason for his dismissal. The Supreme Court of Missouri determined that
the evidence did not support racial discrimination and upheld the lower court’s finding that he
was justly discharged (Barnes Hospital v. Missouri Commission on Human Rights, 661 S.W.2d
534, Mo. 1983).

Using improper techniques or reagents to conduct laboratory tests can be a breach of duty. In
Insurance Company of North America v. Prieto, a federal appellate court found a hospital liable
when a laboratory technician used sodium hydroxide instead of sodium chloride to perform a
gastric (stomach) cytology (cell) test (Insurance Co. of N. Am. v. Prieto, 442 F.2d 1033 6th Cir.
1971).

Medical AssistantsIn the case of Landau v. Medical Board of California, Dr. Landau appealed a
lower court’s decision to remove her medical license. The lower court found her guilty of
allowing her medical assistant to evaluate and remove lesions for biopsy from patients. Dr.
Landau was found guilty of gross negligence by allowing an untrained and unlicensed medical
assistant to remove tissue, such as moles, from patients for biopsy purposes. The court stated
that Dr. Landau’s failure to follow up with two of the patients constituted an extreme departure
from the standard of care and had serious consequences—one of the patients died. Dr.
Landau’s license to practice medicine was revoked. The medical assistant was not charged
(Landau v. Medical Board of California, 71 Cal. Rptr. 2d 54, Cal. App. 1998). In this case, the
medical assistant did not refuse to perform the task given to her by Dr. Landau. However, she
was, in fact, named in the litigation, although the principle of respondeat superior was ultimately
followed.

In South Carolina in 2018, a medical assistant administered a tetanus shot to a patient who then
suffered joint effusion, supraspinatus tendinopathy, a subchondral bone cyst to her shoulder,
and arm muscle tears. Her left upper extremity was permanently impaired. The woman alleged
that the medical assistant’s negligence caused these injuries. She also claimed negligent
supervision against the urgent care clinic. The jury awarded her a $62,500 verdict.

Med TipMedical assistants can be named or prosecuted in a [Link] AssistantsA

nursing assistant in a Mississippi nursing home was attempting to lift a patient into a whirlpool
bath using a hydraulic lifting device. The seat on the device became disconnected, causing the
patient to fall and fracture a hip. The nursing assistant was found negligent for improperly
connecting the seat to the lift device (Kern v. Gulf Coast Nursing Home, Inc., 502 So.2d 1198,
Miss. 1987).

Paramedics In 2023, a paramedic supervisor was sentenced to three years in federal prison. In
the plea agreement Christopher Pattinson, age 41, admitted to tampering with approximately
1900 vials of fentanyl from the paramedic department, and he altered the hospital’s narcotics
logs and made false entries in the hospital’s records. He also would remove vials of fentanyl
from the locked narcotics supply cabinet and replace the drug with saline. He would then return
the tampered vials to the locked supply cabinet. Pattinson will serve three years of supervised
release after his incarceration, and he has been ordered to pay restitution to the [Link]
states have statutes that provide civil immunity for paramedics and other EMS providers who
provide emergency life-saving care. In Morena v. South Hills Health Systems, the Pennsylvania
Supreme Court held that paramedics were not negligent when they transported a shooting
victim to the nearest hospital rather than to a hospital five miles away that had a thoracic
surgeon. The court stated that paramedics were not capable of determining the extent of the
patient’s injury (Morena v. South Hills Health Systems, 462 A.2d 680, Pa. 1983).

PharmacistsIn 2015, the California Board of Pharmacy sought to hold a pharmacist-in-charge

liable, for a technician who had stolen over 200,000 tablets of controlled substances, even
though the pharmacist was unaware of the theft. The tech would order six bottles of 500 tablets
for delivery, check in the drugs away from the pharmacist on duty, and secretly move three
bottles at a time to her car. The board held the pharmacist liable and revoked his license, a
district court affirmed the board’s decision, and the pharmacist appealed. The court affirmed the
board’s decision arguing that the pharmacist could have restricted access to who orders
controlled substances. He could have checked selected containers being checked in, or he
could have checked the invoices (Sternberg v. California State Board of Pharmacy, (2015) 239
[Link].4th 1159).Physical TherapistsIn 2022, the United States Attorney’s Office for the District
of Colorado Dynamic Physical Therapy, LLC, and its owner agreed to pay $400,000 to the
United States because they violated the False Claims Act by billing Medicare, Medicaid, and
Tricare for individual aquatic therapy services when they had actually attended group sessions.
A former employee of the company was the whistleblower. A physical therapist who refused to
allow an 82-year-old nursing home resident to use the bathroom before beginning a therapy
session, resulting in the patient urinating during the session, was found by the court to be
negligent. The therapist appealed the decision, claiming that her refusal to allow the patient to
use the bathroom was a mere error in judgment regarding whether the patient really needed the
bathroom break, and thus was not negligence. The state supreme court upheld the lower court’s
ruling, finding that the nursing home had a clear policy, known to and followed by other
employees, of allowing patients to use the bathroom whenever they expressed a need, and
therefore the therapist was negligent of the patient’s health and welfare (Zucker v. Axelrod, 527
N.Y.S.2d 937, 1988).

Radiologic TechnologistsIn 2008, a 2-year-old boy named Jacoby Roth was taken to Mad River
Community Hospital in California after he fell out of bed. A CT was ordered to check for possible
head injuries. Jacoby was kept in the CT machine for 65 minutes and the technologist activated
the CT scan 151 times. A normal test involves 25 images. Jacoby’s parents stopped the test
because they were worried it was taking too long. Jacoby developed radiology burns on his
face. The hospital did not report the radiation overdose, but Jacoby’s parents did, prompting an
investigation by the California Department of Public Health. The licensed radiological
technologist was fired, and her state license was suspended later that year. The parents filed a
civil suit against the technologist and a settlement was reached. The hospital was fined, the
fines were dismissed because authorities found that the incident was due to operator error, not
negligence by the hospital.

Respiratory TherapistsAll healthcare professionals are required to report unusual situations to

their supervisors. If they do not, they are negligent in their duties. In an Indiana case involving
an inhalation therapist and a nurse, the court found the two negligent in failing to report to their
supervisor that an endotracheal tube had been left in a patient longer than the usual three to
four days. The patient suffered injury from the tube and needed several surgical procedures to
remove scar tissue and open her voice box. Subsequently, the patient required a tracheotomy to
breathe and was only able to speak in a whisper at the trial (Poor Sisters of St. Francis v.
Catron, 435 N.E.2d 305, Ind. Ct. App. 1982).

The lesson learned from these examples cautions healthcare professionals to only practice
within their scope of practice, to scrupulously adhere to all safety precautions, and to ensure
that their work is patient-centered. Occasionally, a healthcare worker must decline to carry out a
[Link]’s wise to talk to the risk management team about the need to complete an incident report
whenever an unusual situation occurs. This report, which accurately reflects the time, date, and
facts of the situation, can be subpoenaed by the court in the event of a negligence lawsuit. Med
TipBe aware that any written records that you personally keep at home, such as a journal, can
also be subpoenaed.

Tort ReformMalpractice reform, also referred to as tort reform, is a controversial issue.

According to the National Conference of State Legislatures, 35 states have passed reforms in
which some of them limit an injured person’s ability to sue. In some states, there is a cap on
damage awards. Physicians, insurance companies, and other business interests want reform
that will help to shield them from the high costs of lawsuits. On the other hand, patient advocate
groups believe that entering into a lawsuit is the only choice left for many people who have been
harmed by the healthcare they received. Some of the tort reforms have resulted in jury awards
that are too small to make the lawsuit worthwhile for the patients or their families by the time the
attorneys have been [Link] the United States, punitive damages are rarely awarded—although
they are available and are sometimes quite staggering in amount (millions of dollars). For
example, in 1999, a Los Angeles county jury awarded $4.8 billion in punitive damages against
General Motors to a group of six burn victims whose 1979 Chevrolet Malibu was rear-ended by
a drunk driver, causing it to catch fire. This was later reduced to $1.2 billion by the [Link]
compensation more easily applies to property damage where the value can be assessed.
However, it is difficult to quantify damages to a person’s body and mind—so there is no fixed
dollar amount that the court can relate to the severity of injury. Also, it is difficult to place a dollar
amount on a person’s pain and [Link] cases have caused some physicians to
leave their practice of medicine even though they were not found to be negligent. It may take
years before a malpractice case makes it into a courtroom or settlement. One physician writes
about a lawsuit in which she was sued by the patient’s family after the mother’s death from an
aggressive colon cancer that was unexpected and very fast. The physician states that she
treated the patient as she would wish to be treated. She believes that the patient’s children were
coping with many emotions over their mother’s death and that filing a malpractice suit helped
them cope with their anger and frustration. This physician said, “I loved my patients and my
practice, but this made me wary and mistrustful of them—and myself.” Even though her
insurance company would likely cover any settlement, the experience was devastating for this
physician. A trial date was scheduled four years after the patient’s death occurred. During the
intervening four years, this physician closed her primary care practice of almost 30 years.
Eleven days before the trial, the plaintiff’s lawyers asked to withdraw from the case. The family
asked for a continuance of the case, which the judge denied. Finally, the family agreed to drop
the case because it appeared unlikely that they would win. This physician cited all the wasted
time in the more than four years since the death occurred, the emotional anguish, and the
$150,000 spent by her insurance company in the run-up to the trial. Not to mention giving up her
30-year practice.

Guidelines for Malpractice PreventionYou have a legal duty not to inflict harm to a patient. Take
everything that you do seriously even when you think it is not an issue. And always be careful
what you say in front of a [Link] GuidelinesGeneral guidelines for malpractice
prevention also include concerns for safety, communications, and documentation.

Always act within your scope of practice; never attempt to provide care beyond the scope of
your training or experience.

Make certain that all staff have a clear understanding of what conduct is unlawful.

Provide in-service training on what is meant by the standard of care and professional conduct.

Do not make promises of a cure or recovery.

Treat all patients with courtesy and respect.

Try to avoid having patients spend more than 20 minutes in the waiting room. Explain the
reason for any delays in treatment.

Always use two methods to identify the patient before beginning treatment. When a patient
identification bracelet is available, use that to identify the patient as well as calling the patient by
name.
Physicians and advance practice providers should avoid diagnosing and prescribing
medications over the telephone whenever possible.

Physicians should provide ongoing continuing education and training for all staff.

Do not criticize other staff members or your employer in public areas where patients could
overhear your comments.

Safety

Always make sure that patients use their assistive devices, such as canes and walkers, when
they are in your facility. Don’t let them leave these devices in the waiting room.

Have periodic inspections of all equipment.

Check electrical cords to make sure they are grounded.

Keep all equipment in safe condition and ready to use.

Keep floors clear and clean.

Open doors carefully to avoid injuring someone on the other side of the door.

Provide a mechanism to ensure that all doors and windows, and drawers if necessary, are
locked.

Lock up all controlled substances (narcotics).

Follow fall prevention guidelines in facilities.

Place warning signs regarding wet floors, fresh paint, construction, and other slippery or unsafe
conditions.

Handle biohazardous waste and sharps such as needles by placing them in the correctly
labeled containers.

Know and follow Occupational Safety and Health Administration (OSHA) safety guidelines.

Have a disaster plan and provide periodic drills, including fire, for the staff.

Communication

Use clear and direct language. For example, say “This does not seem to be the correct dose”
rather than “This does not seem right.”

Maintain confidentiality concerning all patient information and conversations and never discuss
within hearing distance of other patients.
Return telephone calls to patients as soon as possible.

Refrain from criticizing other medical professionals.

Discuss all fees before beginning treatment.

Provide emergency telephone numbers for patients to use when the office is closed.

Take all patient complaints seriously.

Use a coding system, such as the last four digits of the patient’s Social Security number, on the
patient registration log rather than the patient’s name.

Listen carefully to all the patient’s remarks. Communicate the patient’s concerns to the entire
healthcare team.

If the provider must withdraw from a case, fully inform the patient of the withdrawal in writing and
provide enough notice (30 to 60 days) for the patient to acquire another physician.

Call patients at home, either the afternoon of outpatient (day) surgery or the following day, to
check on their progress. Document this phone call.

Follow up on all missed and canceled appointments.

Inform patients of all risks associated with any treatment and ensure they understand and, in
writing, agree to accept the risks.

Place all special instructions for patients in writing and maintain one copy for the medical record.

Documentation

Prepare an incident report to document any unusual occurrence in the medical office, clinic,
laboratory, or hospital.

Maintain an accurate log in the patient’s chart of all telephone conversations.

Carefully document in the patient’s medical record all prescription and refill orders.

Make sure that signed consent forms are obtained before beginning any treatment or
procedure.

Document all missed appointments and cancellations in the patient’s medical record.

Document whenever it is necessary to withdraw from caring for a patient.

Keep all paperwork current.

Make sure that the provider has read and initialed all diagnostic test reports before filing them.
Do not do “blame charting” by including criticism of a physician or other staff member in the
patient’s medical record.

NEVER alter the medical record! If using an electronic medical record, make corrections
according to the standards set by your physician/employer. If the medical record is maintained
by pen and paper, NEVER use “white-out” or any other type of correction liquid or tape. Make
any corrections by the acceptable method of drawing a single line through the error, writing the
correction above the error, dating the change, and initialing it.

Do not delete or alter what another person has charted in the medical record, even if it is clearly
incorrect. Contact the supervisor or risk manager with this information.

Enter all telephone orders from physicians on the patient’s chart. If there is a concern that the
physician may not countersign the order, then have another staff nurse on the phone line who
will then sign the chart as a witness.

Carefully document patient discharge notes on the medical chart. Give the patient a written copy
of all discharge instructions.

Never leave any spaces for a “late entry” in the medical record. It is a better practice to actually
write a late entry when time allows and mark it as such. Remember to accurately note the time
and date when the late entry was made. Never add personal notes such as “Too busy to chart
yesterday.”

Don’t just document, “Dr. called . . . ” Be sure to include the physician’s name such as “Dr.
Nduku called . . . ”

NUMBERS NUMBERS(DO WHATEVER UR DOING) and ALSO I DONT PERVIOSU COURT

CASES BTW