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- the failure of an ordinary
- person to exercise a reasonable amount of care in a situation that causes harm
- to someone or something for which damages can be given by court.
- is the liability that is
- imposed by the common law and some statutes for injuries caused by breaches of
- duties not based on contractual agreement. Tort liability is almost always
- based on fault; that is, something was done incorrectly or something that
- should have been done was omitted.
- the failure to do something
- that a reasonable health care professional, would do. Or, the doing of
- something that a reasonable prudent health care professional would not do. This
- causes the patient harm and/or injury for which damages can be given by the court
Res Ipsa Loquitur
(how to prove liability)
Injury did not occur absent Negligence
–Injury created by instrument in exclusive control of the Defendant
–Injury was not due to any voluntary act or contribution by the Plaintiff
–Once the three above conditions are proven, the burden of proof shifts to the defendant to proof they did not cause the patient’s injury
Negligence per se
The violation of a specific requirement of law or ordinance
•The violator is presumed negligent
•The burden of proof shifts to the violator to prove he or she was not negligent
•The only fact for determination by the jury is the omission or commission of the specific act required.
cause of action (lawsuit) for the death of a person caused by the wrongful act or neglect of another, may be asserted by dependents of the decedent, damages may be given to compensate the dependents for their loss
cause of action for or against a person is not lost by reason of the person’s death. This lawsuit survives subject to the applicable statute of limitations period. Damages may be given for the cause of action that the decedent would have filed in court
a plaintiff’s failure to be careful that is a part of the cause of his or her injury
the reduction of the damages to be recovered by the contributory negligent plaintiff in proportion to his or her fault
Your employer’s policy will cover you, but only to a point.
That policy is designed to fit the institution’s needs and protect its interests, which won’t always be the same as yours. That policy will not defend you in a licensure disciplinary proceeding
hospitals and other health care institutions can be held liable for the consequences of their agents’ acts in a fashion similar to their being held liable for their employees’ acts
- partners are considered agents for each other, and partners are liable for the torts committed by other
- partners in carrying out partnership activities. A joint venture is a kind of partnership. Health care institutions are liable for actions of physicians within the scope of partnerships or joint ventures with those physicians.
apparent or ostensible agency
some courts refuse to examine the details of the hospital-physician relationship. Instead they consider how the relationship appears to patients. If the hospital appears to be offering physician services, the physician is considered a hospital agent under the doctrine of apparent or ostensible agency.
covers you for any incident that occurs during the policy term, regardless of when the claim in filed. As long as the incident occurred during the term that the policy was active, regardless of when you were named in a lawsuit, you are covered.
also provides coverage for an incident that occurs during an active policy period, but only if the claim is also reported to the insurance company while the policy remains in force or during any applicable extended reporting period (also known as “tail” coverage).
- Key: you run the risk of not being covered for a claim discovered after the policy has expired. Therefore, if you decide to terminate a claims-made policy, you will need to purchase tail coverage to continue to protect
- yourself. This will extend the time that a claim can be reported, but the incident still needs to occur while the policy was active, or you won’t be covered.