Torts

Introduction

Within the intricate tapestry of law, torts occupy a significant space, representing civil wrongs that inflict harm upon an individual. Among the diverse landscape of tortious acts, a prominent category emerges in the healthcare realm: medical malpractice. This tort absorbs the concept of negligence, where a healthcare provider’s deviation from the expected standard of care results in patient harm. In other words, it embodies the failure to act with the prudence and skill that a reasonably competent healthcare professional would demonstrate in similar circumstances. Here we begin to dissect the legal framework surrounding negligence within the healthcare context and meticulously navigate the definitions of duty, breach, causation, and damages, elucidating the elements necessary to establish a successful claim.

What is a tort?

A tort is a civil wrong committed upon an individual or as typically termed in healthcare, medical malpractice which falls under the legal doctrine of negligence.  Strict liability (like medically defective products) is a legal doctrine that causes someone to be liable for the damages their actions or product causes regardless of fault. Tort liability is determined by the premises that: (1) one individual should not intentionally injure another person or their property. (2) Everyone should exercise reasonable care and caution in the conduct of their affairs. The main difference between intentional torts and negligence is intent which is present in intentional torts but not in negligence.

What is Torts? And What Torts is Not. [YouTube] 2014 by Center for Innovation in Legal Education

Negligence

Negligence is a lesser form of fault than intentional torts, so damages in negligence cases are limited to actual damages, not punitive damages. It can be carelessness resulting from a deviation from the standard of care. Unlike the intentional tort, negligence rests on a spectrum of lesser faults. Negligence claims are generally restricted to the redress of “actual damages,” as opposed to the punitive damages reserved for more egregious misconduct. At its core, it stems from a failure to uphold a requisite standard of care, resulting in foreseeable harm.

Table 1. Types of Negligence

Proof of Negligence

Proof of negligence is determined by four elements: duty, breach, causation, and damages.

• Duty: The defendant has a duty or obligation to act reasonably to avoid harming others. This duty is based on the relationship between the defendant and the plaintiff. Did a physician-patient relationship exist?
• Breach: The defendant breached their duty of care by failing to act reasonably. This means that the defendant did not take the precautions that a reasonable person would have taken in the same situation. This is a deviation from the standard of care or failure to adhere to an obligation. Did the physician fail to meet the standard of care?
• Causation: The defendant’s breach of duty must have caused the plaintiff’s injuries. This means that the plaintiff’s injuries would not have happened if the defendant had not breached their duty. Did the physician fail to meet the standard of care?
• Damages: The plaintiff must have suffered actual damages (foreseeable injury) as a result of the defendant’s negligence. This means that the plaintiff must have suffered some type of financial or physical loss. Did the patient incur actual damages as a result of the breach?

In addition to these four elements, other factors, including the patient’s age, health, and medical history, as well as the severity of the patient’s injuries, may affect the liability of a physician in a negligence case. Furthermore, strong incentives are provided to take reasonable care and prevent injury.

An Overview of Tort Law: Intentional Torts, Negligence, and Strict Liability [YouTube] 2014 by Center for Innovation in Legal Education

A. Duty

To determine negligence, the first question is whether or not a duty is owed. This is established by the fact that the actions of a tortfeasor can lead to a foreseeable risk of injury (Perry & Thompson, 2017). Examples of tortfeasors include a driver, doctor, landlord, babysitter, business, etc. Regular citizens are not required to assist someone in foreseeable danger unless they create the danger. For example, if a child is drowning, you do not have a legal duty to save the child unless you have a duty to protect the child, such as a parent, lifeguard, or caregiver, or if you created the danger by allowing a hose to drain water filling a public area.

• In a negligence lawsuit, the plaintiff must demonstrate the defendant owed him or her a duty of care.
• The duty of care can be highly specific or applied more generally to the public.
• If the court decides that the defendant did not meet his or her duty of care, the defendant can be found in “breach of duty of care.”

1. The Carrol Owing Rule

To determine whether or not standard duty or reasonable care is provided depends on the circumstances. In the case United States v. Carrol Towing United States v. Carrol Towing, the judge determined negligence by using an algebraic function of three variables: if the probability is called P; the injury is L; and the burden is B; liability depends upon whether B is less than L multiplied by P. B<PL Using this equation, the expected benefit should exceed the cost and reduce the probability of an accident (Perry & Thompson, 2017). Healthcare providers may be sued for negligence if an individual is injured when the provider fails to exercise the appropriate standard of care. However, the claimant must show:

1. a duty existed for the provider to conform to a certain standard of care,
2. the provider breached that duty of care,
3. the claimant sustained actual loss or damage from the conduct or omission by the provider, and
4. that the loss or damage suffered was proximately caused by the provider’s breach of duty.

In general, duty is always owed under

• Common law (duty owed by provider): reasonably foreseeable plaintiff
• Statutory duty (mandated by laws such as the EMTALA)

2. Standard of Care

Typically, the standards of care have been determined by asking what a similar individual would do in this circumstance. For physicians, the nature of medicine requires a comparison with similar skill sets of similar physicians. To determine the standard of care, courts need to determine two key items:

• The skill and knowledge ordinarily possessed by a reasonably competent practitioner in the same medical specialty. This means that the court will consider the level of training, experience, and knowledge that is typically possessed by other doctors in the same specialty as the defendant doctor.
• The degree of care and skill that a reasonably prudent practitioner would exercise under the same or similar circumstances. This means that the court will consider the specific facts and circumstances of the case, such as the patient’s condition, the risks and benefits of the treatment, and the available alternatives.

3. Location

An additional consideration of the court when determining what a “reasonable physician” would do is the locality. Previous courts used a strict locality standard in medical malpractice cases, but recently courts have moved away from this standard due to the difficulty of getting local physicians to testify against other local physicians and the increasing nationalization of the medical community. This meant that the standard of care was set by the practices of other doctors in the same community as the defendant doctor. However, several factors have led recent courts to move away from the strict locality standard. One factor is the difficulty of getting local physicians to testify against other local physicians. Another factor is that the medical community is becoming increasingly national and specialized. This means that the practices of doctors in one community may not be the same as the practices of doctors in another community. Additionally, in smaller communities, specialists may be limited, and the standard of care for that specialty should be reviewed by the same type of specialist; however, this may not be true in all states.

B. Breach

The second element in a negligent action is proof of breach of duty. Once duty has been established and a party fails to provide reasonable care, which may include taking a particular action or not doing some other action, a breach is proven. Typically, medical expert testimony is used to prove medical malpractice. The expert must be able to show that the physician departed from the standard of care. There are cases where experts are not necessary to prove breach of care. For example, an injured patient can claim negligence per se. With this argument, a plaintiff must show that the statute was violated and that the violation was an actual and proximate cause of the accident. An example would be an ER provider refusing a critically ill patient, directly violating the EMTALA.

Additionally, accreditation bodies and regulatory standards can specify standards of treatment. These are referred to as “never events” or “adverse events.” To better prevent their occurrence, the [pb_glossary id="394"]National Quality Forum[/pb_glossary] has published a list of “Serious Reportable Events” (“SRE”s). The list of serious reportable events, or “never events,” includes:

• Surgical or invasive procedure events
  • Wrong site
  • Wrong patient
  • Wrong procedure
  • Retention of foreign body
  • Postoperative death
• Product or device events
  • Patient death associated with contaminated drug or device
  • Death or serious injury associated with the use of a device
  • Death or serious injury associated with IV air embolism
• Patient protection events
  • Discharge of patient who is unable to make decisions (to an unauthorized person)
  • Death or serious injury associated with patient elopement (disappearance)
  • Patient suicide, self-harm, or attempted suicide resulting in injury
• Care management events
  • Patient death or serious injury associated with a medication error
  • Patient death or serious injury associated with unsafe administration of blood products
  • Maternal death or serious injury associated with labor or delivery in a low-risk pregnancy
  • Death or serious injury of a neonate associated with labor or delivery in a low-risk pregnancy
  • Patient death or serious injury associated with a fall
  • Any Stage 3, Stage 4, and unstageable pressure ulcers acquired after admission
  • Artificial insemination with the wrong donor sperm or the wrong egg
  • Patient death or serious injury resulting from the irretrievable loss of an irreplaceable biological specimen
  • Patient death or serious injury resulting from failure to follow up or communicate laboratory, pathology, or radiology test results
• Environmental events
  • Patient or staff death or serious injury associated with an electric shock
  • Incident where a system designated for oxygen or other gas to be delivered to a patient contains no gas, the wrong gas, or is contaminated by toxic substances
  • Patient or staff death or serious injury associated with a burn incurred from any source
  • Patient death or serious injury associated with the use of physical restraints or bedrails while being cared for
• Radiologic events
  • Death or serious injury of a patient or staff associated with the introduction of a metallic object into the MRI area
• Potential criminal events
  • Any care ordered by or provided by someone impersonating a physician, nurse, pharmacist, or other licensed healthcare provider
  • Abduction of a patient
  • Sexual abuse/assault on a patient or staff member
  • Death or serious injury of a patient or staff member resulting from a physical assault (i.e., battery)

Additionally, plaintiffs can prove breach without evidence of a deviation from the standard of care if it satisfies res ipsa loquitur, Latine for “the thing speaks for itself.res ipsa loquitur Three elements are needed to show res ipsa loquitur, which include:

1. The accident generally would not have occurred unless negligence was provided.
2. Harm was under the exclusive control of the defendant.
3. The accident was not caused by the plaintiff.
   

   

What defense is needed to prove breach?

• Expert Testimony
• Negligence per se
• Serious reportable events
• Res Ipsa Loquitur

C. Causation

The second element in a negligent action is causation. It is a necessary element of many legal claims, including negligence, product liability, and intentional torts. There are two main types of causation in law:

• Factual causation, also known as actual causation, meaning “but for” breach of duty, the injury would not have occurred.
• Proximate causation means the injury must be a foreseeable outcome.

However, causation can be difficult to prove, especially in cases where harm could be the result of many causes. The burden of proof rests on the plaintiff. Proof of causation includes expert testimony and is most difficult to prove in the medical context. If the defendant can show that the injury would likely have happened regardless of their direct care, the defendant is not liable. Meaning the outcome was inevitable.

• The law of torts is based on the principle of fairness. It is unfair to allow someone to cause harm to another person without any legal liability.
• The concept of analogous duty is already used in other areas of law, such as the law of negligence.
• There is a growing trend in the law to recognize the importance of preventing harm, even if there is no explicit duty of care.

Arguments against the existence of an analogous duty in causation:

• The law of torts is based on the principle of fault. It is unfair to hold someone liable for harm that they did not intend to cause.
• The concept of analogous duty is too vague and uncertain. It would be difficult to apply it in practice.
• The law of torts should not be used to create new duties of care. This would lead to increased litigation and uncertainty.

Table 2. Negligence Defenses

D. Damages

The final element of proof of negligence is to show damages suffered as a result of the breach of duty by the defendant. This can be as straightforward as economic salary loss, pain/suffering, or death. Reform attempts have been made to limit the amount of pain and suffering damages awarded in tort litigation. The purpose of tort litigation is to compensate victims for injuries incurred by the fault of another party. Victims typically hire attorneys to collect damages, and attorneys are compensated through a contingent fee system, which means they receive a percentage of the recovery. Contingent fees make the legal system accessible to all, regardless of their ability to pay. However, some people believe that contingent fees are unfair when the injuries are very substantial and liability is easily established. For example, in a case where a victim is awarded $15 million for the loss of two legs, it may be difficult to justify an attorney’s fee of $5 million.

1. Compensatory Damages

Compensatory damages are intended to compensate the victim for their actual losses, such as medical expenses, lost wages, and pain and suffering. They are meant to make the victim whole as if the injury had never happened. Compensatory damages can be awarded in a variety of cases, including personal injury, property damage, and wrongful death. The amount of compensatory damages awarded will vary depending on the specific facts of the case. No amount of money can replace an arm, eye, or life, but monetary damages can help with the costs of damage to property or hospital bills. Experts use life expectancy tables to compute compensatory damages with a degree of accuracy.

2. Punitive Damages

Punitive damages are intended to punish the defendant for their wrongful conduct and to deter others from engaging in similar behavior. They are not meant to compensate the victim for their losses. Punitive damages are not awarded in all cases. They are typically only awarded in cases where the defendant’s conduct was particularly egregious, such as in cases of intentional torts or gross negligence. Punitive damages can be subject to limitations. Courts suggest that these damages cannot exceed a 10:1 ratio with the initial award amount. Many states have been more aggressive with punitive damage limits for personal injuries, with fixed caps starting at $250,000 in some states and up to $10,000,000 in others.

3. Limitation of Damages

Limitation of damages refers to laws that restrict the amount of damages that can be awarded in certain types of cases. These laws are often put in place to protect defendants from excessive liability. Limitation of damages laws can vary from state to state. Some states have no limitations on damages, while others have strict limits on the amount of damages that can be awarded. Limitation cap amounts can range from $250,000 to $800,000; however, all make exceptions for cases involving death and serious injuries like the loss of a limb during surgery. Cases that provide these exceptions either permit a higher damage cap or eliminate the cap altogether. Few states have placed damage caps for personal injury claims.

Malpractice

Malpractice is a type of negligence that occurs when a hospital or professional, such as a doctor, lawyer, or accountant, fails to provide the care that a reasonably competent professional would have provided in the same circumstances. Malpractice can result in harm to the patient or death, and it can lead to a lawsuit. Four elements must be proven to establish medical malpractice:

• The healthcare professional has a duty of care to the patient.
• The healthcare professional breached that duty of care.
• The patient suffered damages as a result of the breach.
• The damages were caused by the breach of duty.

In medical malpractice cases, even though the standard of care is determined by experts, the question of whether negligence occurred is ultimately decided by a jury. In many cases, juries find that liability exists, even when members of the profession contend that the care provided was reasonable.

UAE Medica Liability & Malpractice Law Explained [YouTube] 2015 by Lex Animata Law Visualizaed | Hesham Elrafei

The number of malpractice suits against doctors and hospitals has increased rapidly in recent years, and the size of the verdicts has also increased. This has had a significant impact on the practice of medicine and the cost of malpractice insurance. Many doctors have been unable to obtain adequate malpractice insurance coverage, and some have been reluctant to attempt medical procedures that could result in a malpractice suit. As a result, many doctors are practicing defensive medicine, which is more costly. Malpractice cases against lawyers have also increased significantly, but the impact on the cost of legal services is not as great as it is on medical services. Malpractice litigation against accountants is another area of growing significance.

Defensive medicine is the practice of ordering tests or procedures that are not strictly necessary to protect oneself from a malpractice lawsuit. Defensive medicine can be costly for both patients and healthcare providers. The cost of malpractice insurance has increased significantly in recent years, which has passed on costs to patients through higher medical bills. Some doctors have changed their practice patterns in response to the threat of malpractice lawsuits. For example, some doctors may be less likely to perform risky procedures or to admit patients who are considered to be high-risk. Additionally, some states have had a shortage of specific specialties due to the costs associated with malpractice insurance for those providers.

How Can Doctors Avoid Malpractice Suits? Be Nice [YouTube] 2015 by Healthcare Triage

Strict Liability

In tort law, strict liability is a legal doctrine that holds someone responsible for the harm they cause, even if they did not intend to cause harm or were not negligent. This doctrine is based on the idea that certain activities are inherently dangerous and that the people who engage in these activities should be held responsible for the harm that they cause, regardless of their intentions or level of care. The law of strict liability began with owning dangerous animals and has since expanded to include other types of activities, such as the manufacturing of fireworks, toxic chemicals, and explosives. In healthcare, this can extend to defective medical products and equipment. These activities are also considered to be inherently dangerous, and the people who engage in them should be held responsible for the harm that they cause. Under strict liability, the plaintiff does not need to prove that the defendant was negligent. Instead, the plaintiff only needs to prove that the defendant engaged in the dangerous activity, that the activity caused the harm, and that the plaintiff suffered damages. This means that even if the defendant took all reasonable precautions, they can still be held liable for the harm caused by their dangerous activity.

Restatement (Third) of Torts shows product liability through three avenues: manufacturing defect, design defect, and warning defect. The Restatement of the Law (Third) of Torts is a multi-volume treatise on tort law published by the American Law Institute (ALI). It is a revision of the Restatement of the Law of Torts, published in 1934. The Third Restatement is still under development, but it has been published in several volumes, including:

• Liability for Physical and Emotional Harm (2010/2012)
• Apportionment of Liability (2000)
• Products Liability (1998)
• Liability for Economic Harm (2020)

The Third Restatement is a comprehensive and authoritative source of tort law. It is used by judges, lawyers, and scholars to interpret and apply tort law. The Third Restatement also guides legislators and policymakers who are considering changes to tort law. The Third Restatement has been criticized by some for being too complex and for departing from traditional tort principles. However, it is still considered to be an important work of legal scholarship. The Restatement (Third) of Torts 47 is a section that deals with the issue of emotional harm. It provides that a plaintiff may recover for emotional harm alone if the harm is severe and the defendant’s conduct is extreme and outrageous. This is a significant departure from the traditional rule, which required plaintiffs to prove that they had also suffered physical harm to recover for emotional harm. The Restatement (Third) of Torts 47 has been cited by courts in several cases, and it is likely to have a significant impact on the law of emotional harm.

A plaintiff must show that medical products depart from the intended design to prove a manufacturing defect. A design defect is determined by providing an alternative design that provides similar benefits but a lower risk of harm. A warning defect is a product defect that occurs when the manufacturer fails to provide adequate warnings about the dangers of using the product. examples include:

• A power tool that does not have any safety instructions.
• A children’s toy that does not have a choking hazard warning.
• A medication that does not have a warning about its side effects.
• A car that does not have a warning about its blind spots.
• A lawnmower that does not have a warning about the dangers of operating it near children.

What is Strict Liability Crime? [YouTube] 2015 by USLawEssentilas

Intentional Torts

Intentional torts involve (1) interference with the personal freedom of an individual, (2) interference with property rights, (3) interference with economic relations, and (4) wrongful communications.

1. Assault
2. Battery is defined as the harmful touching of someone without their consent.
3. False imprisonment is the unlawful physical restraint of a patient. For example, when a patient is locked in a room and not permitted to leave.
4. Invasion of privacy which occurs with improper disclosure of medical treatment information and violations protected under HIPAA. All patients have a right to the reasonable expectation of privacy. Other circumstances also exist outside of the medical industry, including phone tapping and the use of photos or images without permission.
5. Mental Distress is a tort that occurs when someone intentionally or recklessly causes another person severe emotional distress. It can be caused by the high-pressure tactics of collection agencies, including violent cursing and accusations of dishonesty. However, it is not a tort when someone simply insists on their legal rights, even if they know that it will cause emotional distress.

Table 3. Theory of Liability

Defenses

In a tort case, the plaintiff must prove that the defendant’s actions were negligent and that the negligence caused the plaintiff’s injuries. The defendant can then raise an affirmative defense to try to avoid liability. The two main affirmative defenses in tort law are the assumption of risk and contributory/comparative negligence.

• Contributory/comparative negligence is a defense that applies when the plaintiff’s own negligence contributed to their injuries. Awards to the plaintiff may be reduced or eliminated if the defendant can show that the plaintiff was negligent. For example, if a patient is noncompliant with treatment (medication regimes).
• Assumption of risk is a defense that applies when the plaintiff voluntarily and knowingly exposes themselves to the risk of harm. For example, if a person signs a waiver before participating in a dangerous activity, they may be assuming the risk of injury. For medical malpractice, the assumption of risk is more closely related to the doctrine of informed consent.

The defendant has the burden of proof for affirmative defenses. This means that the defendant is responsible for proving that the defense applies. The concept of informed informed consent consent is related to the assumption of risk. Informed consent means that the plaintiff voluntarily agrees to an activity after being fully informed of the risks involved. If the plaintiff does not give informed consent, they may be able to recover damages even if they assumed the risk of injury. Finally, tort claims may be dismissed if they are not filed within the time of the statute of limitations. The statute of limitations is a law that sets a time limit on how long after an injury a person can file a lawsuit. If a lawsuit is not filed within the statute of limitations, it will be dismissed. The following must be disclosed for informed consent to be effective: