Assignment 1: Law and Healthcare HSA515 Health Care Policy, Law and Ethics Dr. Harold Griffin January 22, 2012 Identify and explain the four elements of proof necessary for a plaintiff to prove a negligence case The first element that a plaintiff must prove is that the defendant owed him or her legal duty of care. Generally, this duty of care is a legal notion that states that people owe anyone around them or anyone who could be around them a duty to not place them in situations of undue risk of harm.
Proving this element will largely depend on the facts of the situation.After the plaintiff has proved that a legal duty of care existed, he or she must then prove that this duty was breached. Generally, courts will use the standard of a ‘reasonable person’ when it comes to this question. Specifically, this means that the judge or jury must view the facts of the situation and decide what a reasonable person would have done in a similar situation. If this reasonable person would have acted differently than the defendant, it’s likely that it will be found that the duty was breached. Causation is the most complicated element of negligence.
It means that the plaintiff must prove that the defendant either directly or indirectly caused the injuries and damages suffered by the plaintiff because of the breach of the duty of care. This element has confused even the most respected legal minds over time, and its proof should not be taken lightly. Last, a plaintiff in a negligence case must prove a legally recognized harm, usually in the form of physical injury to a person or to property. It is not enough that the defendant failed to exercise reasonable care.The failure to exercise reasonable care must result in actual damages to a person to whom the defendant owed a duty of care (FindLaw 2012). These damages can be actual costs such as medical expenses and lost income or intangible costs such as pain and suffering or loss of companionship.
Explain how the standard of care can be proven. A standard of care is a medical or psychological treatment guideline, and can be general or specific. It specifies appropriate treatment based on scientific evidence and collaboration between medical and/or psychological professionals involved in the treatment of a given condition.The medical malpractice plaintiff must establish the appropriate standard of care. In theory, establishing the standard of care and establishing the breach of that standard are legally separate. In reality, unless there is a factual question about what the defendant did, the proof of the standard of care also proves the defendant's breach.
For example, assume that the defendant admits that she did not counsel the patient about prenatal testing. If the patient can establish that the standard of care was to offer this testing, the defendant breached the standard.If, however, the physician claims to have done the counseling, the patient will have to prove both that counseling was the standard of care and that the physician did not do the counseling. The most common legal definition of standard of care is how similarly qualified practitioners would have managed the patient's care under the same or similar circumstances.
This is not simply what the majority of practitioners would have done. The courts recognize the respectable minority rule.This rule allows the practitioner to show that although the course of therapy followed was not the same as other practitioners would have followed, it is one that is accepted by a respectable minority of practitioners. (Respectable is used in both senses. ) The jury is not bound to accept the majority standard of care. Jurors may decide that a minority standard is the proper standard and that a physician following the majority standard was negligent.
In most medical malpractice cases, both the standard of care and its breach are established through the testimony of expert witnesses.There are situations in which the plaintiff may be able to establish the standard of care and breach without an expert witness. Explain the principle of “vicarious liability” (respondeat superior). Vicarious liability is a form of strict, secondary liability that arises under the common law doctrine of agency, respondeat superior, the responsibility of the superior for the acts of their subordinate or the responsibility of any third party that had the ability or duty to control the activities of a violator. Employers are vicariously liable for the torts of their employees that are committed during the course of employment.Employers will only be liable for the torts of their employees.
They will not usually be liable for the torts of their independent contractors. It is therefore necessary to establish the status of the tortfeasor (Law Teacher 2012). Three questions must be asked in order to establish liability: • Was a tort committed? • Was the tortfeasor an employee? • Was the employee acting in the course of employment when the tort was committed? Explain why a corporation is considered an “artificial person” under the law. Courts use a legal fiction of treating corporations as artificial persons in order to allow the law to apply to corporations as a whole.
This concept actually began with ancient Rome, where a business was considered to be a single, non-human body made up of many people. In the United States, being treated as an artificial person means that corporations have many of the same duties, responsibilities and protections as real people. The legal basis for treating corporations as people began in 1815, with the case of Dartmouth College v. Woodward.
In this case, the Supreme Court ruled that corporations had the same rights as people to make contracts, and to have those contracts honored.The next step was the 14th Amendment to the Constitution, adopted in 1868, which gave every person in the United States equal rights under the law. The government meant to use the 14th Amendment to overturn state laws limiting the rights of freed slaves, but it soon opened the door for corporations to be given the same rights as people (Showalter 2008). Explain the functions and responsibilities of the governing board of a healthcare corporation. A health center Board of Directors has numerous functions and responsibilities.Many of those responsibilities are grounded in a Board member’s inherent legal duties to the health center of care, loyalty, and obedience.
Federal regulations applicable to health centers (42 C. F. R. § 51c. 304) and Bureau of Primary Health Care policy statements (Policy Information Notice 98- 23, Health Center Program Expectations) elaborate on these duties and set forth specific functions and responsibilities that a governing Board of a health center are expected to fulfill (Showalter 2008).
• Establishes a code of conduct for the Board and the health center management, employees, consultants, agents, etc.The code of conduct should address how to handle actual and potential conflicts of interest and how to ensure confidentiality of health center information. • Establishes a Board training program, under which all Board members (new and experienced) become knowledgeable about: the difference between governance and management and the Board’s role vis-a-vis health center staff; the general roles and responsibilities of corporate Boards of Directors (e. g. , fiduciary duties); the specific duties of Federally-sponsored health center Boards; and potential liabilities and the methods to limit such liabilities. Holds a regularly scheduled meeting at least once a month, keeps minutes of each meeting, and approves the minutes at the next subsequent meeting.
• Attends and participates in all Board meetings – each Board member should be prepared for the meetings (i. e. , read reports and minutes provided prior to the meetings and be familiar with the agenda), ask questions (as appropriate), express his/her opinion, be respectful of the opinions of other members, and act in the best interests of the health center at all times. • Approves the selection and dismissal of the health center’s Chief Executive Officer/ Executive Director. Conducts periodic reviews of the performance of the Chief Executive Officer/Executive Director. References FindLaw.
(2012). Elements of a Negligence Case. Retrieved on January 22, 2012 from http://injury. findlaw. com/personal-injury/personal-injury-law/negligence/negligence-case-elements.
html Law Teacher. (2012). Introduction to Vicarious Liability. Retrieved on January 22, 2012 from http://www. lawteacher. net/tort-law/lecture-notes/vicarious-liability-lecture.
php Showalter, J. S. (2008). The law of healthcare administration (5th ed. ). Chicago: Health Administration Press.
[pic]
