 under them) to perform duties and handle third party interactions (e.g. patient interactions). As the principal and agent work to establish a relationship, both parties must be clear on what is expected in terms of agreed upon duties.
The principal should outline the necessary qualifications and job responsibilities for the position. This should provide the healthcare professional (agent) with a foundation to apply the standard of care when working with third parties as well as follow the rules and terms set by the principal.
Employers should provide training detailing the standard of care and professionalism that is expected throughout the employees’ work.
The standard of care in medical environments such as hospitals, clinics, and offices are similar to those in public environments. This means that employees must exercise careful judgment to ensure the safety of individuals entering the facility. If there are any changes to the condition of the premises (e.g. a wet floor, remodeling/construction), then the visitors (e.g. patients) should be given notice by the employees to prevent any accidents from occurring. Should any unexpected incidents occur, incident reports should be documented promptly by the employee.
Employers must also maintain a safe work environment for their employees. Examples include maintaining proper receptacles for discarding biohazardous waste, ensuring that equipment are inspected and safe to use, and complying with the Occupational Safety and Health Administration’s (OSHA) regulations and guidelines.
There are two types of insurance relevant to the medical field: liability and malpractice insurance.
For an additional cost, a rider is a component added on to an insurance policy to cover extra benefits. For example, physicians may add on a rider to their current policy to cover the employees working in his or her clinic (in the event the employees are held liable for negligence).
Claims-made insurance is a type of liability insurance where the insured parties are only covered for claims made during the time period the policy was in effect. For example, the insured party was covered in 2015 and the insured individual was injured in June 2015. However, if the insured individual then decides to file a claim in January 2016 for the injury, the claim would be denied. Because of this, claims must be filed as soon as possible before the end of the policy.
Occurrence insurance, on the other hand, is a type of liability insurance where the insured parties are covered for any injuries or accidents that occurred during the period when the policy was valid regardless of when the claim is made or reported to the insurer. For example, the insured individual was covered in 2014 and he or she gets injured in March 2014 (or any month during 2014). If the insured individual files a claim at a later time period (e.g. September 2015 or February 2016), the claim would be covered. Since occurrence insurance depends on the time when the injury or incident took place (i.e. the incident occurred at the time period the policy was in effect), it is important to maintain accurate documentation of when and where the incident occurred. As long as the injury occurred at the time the policy was valid and in effect, the claim would be covered.
Physicians and other healthcare professionals also carry malpractice insurance to pay for damages as a result of losing a malpractice lawsuit.
Since physicians and other healthcare professionals have a risk of being taken to court, many of them practice defensive medicine in which more tests and procedures are ordered than are medically necessary to prevent litigation. However, this process can have negative consequences. For example, having patients undergo more tests and procedures may be inconvenient, result in pain and discomfort, and most importantly, it can become very expensive.
With the increasing costs of healthcare related expenses, states working on medical malpractice reform are working on improving patient safety while examining strategies to efficiently streamline the awarding of damages in the legal system (e.g. settlements and judgments by the court).
Alternative dispute resolution (ADR) refers to methods in which civil disputes are handled outside of the court setting. A third party may or may not be chosen to get involved with settling the dispute.
Arbitration is an example of this. Arbitration refers to the process in which a dispute for resolution is submitted to an individual other than a judge. The individual(s) is/are referred to as the arbitrator(s). The arbitrator is the selected individual/party who examines and hears the facts and evidence presented by both sides (e.g. a physician and a patient). Afterwards, the arbitrator issues a binding decision.
There are a few key components regarding arbitration to keep in mind. First, both parties must agree in advance on who will act as the arbitrator. Second, both parties must agree that they will accept the arbitrator’s decision once it is given.
Mediation is another form of ADR which refers to the process in which a neutral third party provides their opinion and utilizes techniques to assist the disputing parties with resolving their dispute.
The book also discusses Med-Arb which utilizes a combination of arbitration and mediation. The arbitrator begins the process as a mediator to assist both parties in reaching a resolution. Should the mediation process fail, the arbitrator will issue a binding decision.
I hope that you are all doing well! It’s the summer season now here and New York has been bustling. It’s nice to just eat outside and enjoy the sunny weather.
For this handout, we go into more detail regarding medical malpractice from both the eyes of the plaintiff and of the defendant. It’s very interesting especially seeing the evolution of liability and medical care in the United States from a legal viewpoint. The condensed summary of the cases put the concepts in action. I’ve also attached articles to accompany the handout. I highly recommend reading Dr. Bal’s article “An Introduction to Medical Malpractice in the United States.” I’ve included the link from the US National Library of Medicine as well as the PDF version of it.
I finished typing this on Friday night, but will set it to publish on Saturday morning (June 11) so that it will be fresh reading for a new day. 🙂 However, if you follow the main site, the PDF and links will be posted by Friday night if you want to read it in advance.
Now that we have a solid foundation of the duties and professional requirements for healthcare professionals, we will now examine the legal aspects of negligence and medical malpractice as a result of a healthcare professional failing to perform his or her duties at a standard level of care.
It is commonly known that procedures may not always go as planned and that the medical field itself is not immune to errors.
We discussed negligence and malpractice in Handout 1.3 on the section on unintentional torts. In this handout, we will go into more detail regarding the facets of negligence and malpractice as well as discuss preventative measures to avoid medical errors from occurring. Other issues that affect healthcare professionals are insurance fraud (false claims) and altering medical records.
We will examine the issues concerning both the plaintiff and defendant’s sides.
Malpractice is defined as professional misconduct or performing one’s duties with a disregard of skill and standard level of care resulting in injury, loss, or damage to the patient. Physicians and other healthcare professionals (licensed or certified) such as nurses, technicians, mental health professionals, and pharmacists are also held to the same professional standards as physicians. The standards set by licensing and certifying bodies form the foundation of the professional level of care that is expected from healthcare professionals and their peers as they practice.
What constitutes as negligence or malpractice may not always be easy to determine. Cases such as a surgeon operating on the wrong area are clear, but if a medical treatment or procedure does not have the planned outcome or result (e.g. when chemotherapy is not as effective as expected), patients may take the issue to court as a result.
As we will see, medical malpractice is more complex than a patient not receiving their expected outcome. Recall from Handout 2.0 (pp. 9-10) that physicians should be clear and thorough during informed consent. One of the key points we discussed was the reasonable physician standard in which the physician should explain the details of the procedure to the best of his or her ability since it is impossible to determine any unforeseen results. So when a procedure is unsuccessful or has an unplanned result, it does not necessarily mean that malpractice has occurred.
With medication errors, issues such as improper labeling and distribution, incorrect administration of medications, or miscommunication (e.g. misreading a prescription or lack of communication between the prescriber and the health professional administering the medication) are frequently seen in these adverse events.
The United States Food and Drug Administration (FDA) encourages individuals, healthcare professionals, and institutions to report any problems related to medical products through MedWatch, an online program to report adverse events.
Adverse events should be reported as soon as possible to ensure the patient’s safety and minimize any further risks as a result of the adverse event.
Actions considered negligent can fall under two categories: (1) committing an act that a reasonable person would not do or (2) failing to act (inaction/omissions).
Malfeasance is defined as performing an act which is wrong and illegal. For example, when a healthcare professional who is not licensed to practice medicine (e.g. prescribe medications) or does not have the ability to request procedures to be authorized (e.g. neurological testing) does so anyway, it is considered malfeasance. This also includes giving medical advice to patients when you are not licensed to do so.
Misfeasance is defined as the improper performance of an act which is normally legal. Usually injury and damages are the result of poor techniques by the healthcare professional. Examples include if a physician unintentionally writes the incorrect dosage of a drug on a prescription (which ends up harming the patient) or when a phlebotomist injures a patient by incorrectly inserting the needle to have blood drawn. In these two cases