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Torts!
Torts & Tort Reform Presentation
| Question | Answer |
|---|---|
| What is a tort? | Wrongful act, other than a breach of contract, for which relief may be obtained in the form of damages or an injunction. Tort laws provide consumers with the right to file claims against those who have violated individual's rights. |
| What are 2 types of torts? | Intentional & Unintentional |
| What are the 5 types of Intentional torts? | Defamation; Abandonment; Assault; Battery; Sexual Misconduct |
| What are the 2 types of unintentional torts? | Negligence & Malpractice |
| What is defamation? | Act of communication that causes someone to be shamed, ridiculed, held in contempt, lowered in the eximation of the community, or to lose employment status or earnings or otherwise suffer a damaged reputation |
| What is abandonment? | Affirmative legal duty broken when a dr./other HC professional has undertaken to render rx to the pt, but fails to continue rx, thereby leaving the pt in a perilous position |
| Abandonment- relation to PT | PTs don't have a duty to rx every pt; however, once duty is established the PT has a responsibility to continue until: pt condition no longer warrants care, both parties agree, or pt D/Cs his/herself |
| What is assault? | "Mental Touching"; individual "thinks" that offensive or harmful touching is going to occur |
| What is battery? | Touching a person in a manner considered offensive to the ordinary person; Individual doesn't have to be conscious of the act; Touching of extensions of person (clothing, AD, etc..) |
| Sexual Misconduct | Engaging in/soliciting sexual relationships while provider-pt relationship exists; Making sexual advances, requesting favors, engaging in verbal/physical contact of sexual nature with pts |
| Sexual Misconduct | Intentionally viewing a completely/partially disrobed pt in course of rx if the viewing isn't related to pt dx/rx under current practice standards |
| What is negligence? | Breach of duty to use care where it is foreseeable that harm may result |
| What is malpractice? | Professional negligence that must contain: duty, breach of duty, causation, damages |
| What is tort reform? | Philosophy that there needs to be change in the civil law system to manage the uncontrolled effects of litigation on the US economy, esp. as it relates to the insurance industry |
| Benefits of Tort Reform | Cap on non-economic damages awarded; Changes statute of limitations; changes in quality of expert witnesses; control over insurance rates; reduction in plaintiff's attorney fees; Fewer frivolous claims |
| Detriments of Tort Reform | Cap on damages of cases that are severe & catastrophic; Limited # of lawyers wanting to take these cases due to contingency fee arrangement; Legitimate cases may not be able to be brought to trial b/c of statutes of limitations restrictions |
| What is the ATRA? | American Tort Reform Association |
| Lawsuits are filed based on certain what? | Causes of Action |
| What is cause of action? | Group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in court from another person |
| What is the most common cause of action a PT will face? | Negligence (Medical Malpractice) |
| What is an element? | Constituent part of a claim that must be proved for the claim to succeed |
| Elements for a cause of action for medical negligence | Duty; Breach of Duty; Causation (Actual & Proximate); Damages |
| What is duty? | Legal obligation that is owed or due to another & that needs to be satisfied; for every duty somebody else has a corresponding right |
| What are the types of duty? | Affirmative; Contractual; Duty to Act; Duty to Speak; Legal; Non-delegable; Duty of loyalty; Fiduciary |
| What is affirmative duty? | A positive step to do something; Report suspected abuse; Failure to report viewed as a breach of duty |
| What is contractual duty? | Duty arising under a particular contract; Ex: tuition reimbursement |
| What is duty to act? | Take action to prevent harm to another; Failure to do so may be liable, depending on circumstances; Ex: Neuro pt driving when unsafe to do so |
| What is duty to speak? | Correct another's false impression; Pt's misperception that a PT is an MD vs DPT; Some states mandate HC providers wear nametags ID'ing who they are & what discipline they provide |
| What is legal duty? | MOST critical to PT; Arises by contract or operation of law; Standard of care (Guide to PT Practice; Expert Witness) |
| What is non-delegable duty? | Cannot be delegated by a contracting party to a 3rd party; May be delegated to an independent contractor by a principal who retrains primary responsibility if duty improperly performed |
| What is principal with regard to non-delegable duty? | One who authorizes another to act on their behalf; Ex: PT responsible for actions of PTA, PT aide, student |
| What is duty of loyalty? | Not to engage in self dealing for personal gain rather than the gain of organization; Ex: conflict of interest |
| What is fiduciary duty? | Duty of utmost good faith, trust, confidence, & candor; Duty to act with the highest degree of honesty & loyalty |
| Breach of Duty Process | Duty is established; Facts of the situation are plead; Establishment of breach of duty |
| What is causation? | Thing that produced "effect/result"; One must prove breach was the legal cause of alleged damages; Produced effect/result |
| Actual Cause | "But-for Test"- w/o this, the event wouldn't have occurred |
| Proximate Cause | Legal Cause; Directly produces an event; Results in legal liability |
| If pt falls in bathroom doorway & dislocates post-surgical hip & has to receive another surgery which causes an avulsion fracture, what are actual/proximate causes? | Actual: Fall; Proximate: 2nd surgery |
| Damages | Monetary payment to accuser b/c of fault of the accused |
| Types of Damages | Economic- loss of wages/profits & medical expenses; Non-economic- pain & suffering; Punitive- punishment due to an act of recklessness, malice or deceit |
| What is an employee? | Person who works in the service of another person (the employer) under an expressed or implied contract of hire, under which the employer has the right to control the details of the work performance |
| What is an employer? | Person who controls & directs a worker under an expressed or implied contract of hire & who pays the worker's salary or wages |
| Vicarious Liability | Liability that a supervisory party bears for the actionable conduct of a subordinate or associate b/c of the relationship between the 2 parties; Liability aka respondent superior; holds employer legally responsible for wrongful acts of employee |
| Fair Labor Standards Act 1938 | Defines what positions qualify for exempt status then employer determines which positions are classified as non-exempt vs exempt |
| Fair Labor Standards Act regulates? | Minimum wage; Overtime pay (must be paid at least 1.5x for hours worked >40/week); Employment of Minors |
| Equal Employment Opportunity Commission | Federal agency created under Civil Rights Act of 1964; Purpose: end discriminatory employment practice & promote non-discriminatory employment programs; Investigates discriminatory employment practices; Encourages mediation & non-litigious resolutions |
| What is discrimination? | Effect of a law or established practice that confers privileges on a certain class or that denies privileges to a certain class b/c of race, age, sex/gender, nationality, religion, or handicap |
| What is reverse discrimination? | Preferential treatment of minorities, usually through affirmative-action programs, in a way that adversely effects members of the majority |
| Equal Pay Act of 1963 | Ensures women & men working the same job for the same workplace receive the same pay |
| Age Discrimination in Employment Act 1967 | Prevents people over age 40 from being discriminated against in hiring, promotion, or termination process |
| Americans with Disabilities Act 1990 | Expanded the previous anti-discrimination laws to prohibit discrimination in the hiring, promoting, & termination of an employee with a disability |
| Civil Rights Act 1991 | Allows monetary damages to be awarded in cases where intentional employment discrimination can be proven |
| Steps to Claim Discrimination | Discuss conduct with offender & use appropriate chain of command; DIscuss conduct with offender's supervisor; File complaint with EEOC; Once EEOC renders opinion or conciliation then alleged victim has 90 days to file lawsuit |
| Employment at Will | Employment w/o contract; Terminated at any time by employer or employee w/o cause; Employee has no legal right to the job |
| Employment at Will in the US | Can be terminated w/o cause but can't be terminated based on race, age, sex, disability |
| Is KS an at-will state? | Yes, so an employee doesn't have to give 2 weeks notice, but it's strongly advised out of respect & professionalism |
| Progressive Disciplinary Action | Employee receives discipline usu based on severity of rule infraction |
| Some infractions considered as verbal warning rules violations, where 1st violation is disciplined with verbal warning, then what? | 2nd violation: Written warning; 3rd violation: Final warning; 4th violation: Termination |
| More severe infractions may lead directly to what? | Written warning or final warning as 1st step; Immediate termination |
| Wrongful Termination | D/C for reasons that are illegal or violate public policy |
| Retaliation D/C | D/C made in retaliation of employee's conduct and that clearly violates public policy |
| Example of retaliation d/c | DON files report against rehab hospital she works for; Hospital fires DON for filing suit; DON wins settlement w/o trial |
| What is a contract? | Agreement b/t 2+ parties creating obligations enforceable by law |
| Employment Contract | Contract b/t employer & an employee in which the terms & conditions of employment are state |
| What is a non-compete clause? | Contractual provision in which 1 party agrees to refrain from conducting business similar to that of the other party |
| What is non-solicitation? | Employee won't attempt, during the terms of the contract & for some specified time thereafter, to recruit the employer's clients or staff |
| Worker's Compensation | System of providing benefits to an employee for injuries occurring in the scope of employment; Hold employer strictly liable; Bars employee from suing employer |
| Family Medical Leave Act- 8/5/93 | Covers all employees of private, state, & local gov't employed by company with at least 50 employees; Some federal employees covered |
| FMLA Details | Entitles employees 12 wks unpaid time off w/in 12 months for those who have been employed 12 mos, have at least 1250 hrs, experiencing specific family/medical problems; employee's job protected during this time off |
| Examples of FMLA | Maternity/paternity leave; Parent, sibling, or child illness |
| Fiduciary Duty | Duty of utmost good faith, trust, confidence & candor owed by professional to the beneficiary; Duty to act with highest degree of honesty & loyalty toward another person & in best interests of other person |
| Fiduciary Duty | Duty to perform with highest standard of care with your pts; Presonal interests can't be put ahead of beneficiary's interest |
| Statute of Frauds | Declares certain contracts unenforceable if they aren't committed to writing & signed by party to be charged |
| Types of Contracts applicable to PT under statute of frauds | Contract that can't be performed w/in 1 yr; Contract for sale of goods >$500; In order for contracts to be valid PT must retain signed copy from employer/vendor |
| Assault & Battery in PT | If pt tells you they don't want you to perform particular rx or to stop rx & you don't stop- you just committed assault & can be sued; Consider another person in room if "private areas" of pt exposed |
| Fraud | Knowing misrepresentation of truth or concealment of material fact to induce another act to his or her detriment |
| Most common types of fraud related to PT | Medicare, Medicaid, Insurance- related to billing of services |
| Res Ipsa Loquitur | Doctrine providing that, in some circumstances the mere fact of an accident's occurrence raises an inference of negligence so as to establish a prima facia case ("the thing speaks for itself") |
| Res Ipsa Loquitur PT Example | Pt on ball, PT leaves unsupervised, pt falls off ball, PT automatically considered negligent on supervision of pt |
| Strict Liability for Products- product liability arising when buyer proves that the goods were unreasonably dangerous & that: | Seller was in business of selling goods; Goods were defective when they were in seller's hands; Defect caused plaintiff's injury; Product was expected to & did reach consumer w/o substantial change in condition |
| Premises Liability | Landowner's/landholder's tort liability for conditions/activities on the premises; Mgr &/or owner are responsible for clinic condition; Can also include enforcing payment & eviction if non-payment |
| Product Liability | Manufacturer's/seller's tort liability for any damages or injuries suffered by a buyer, user, or bystander as aresult of a defective product; based on theory of negligence, strict liability, or breach of warranty |
| Pro Se Litigant | Someone represents self throughout litigation process & doesn't have lawyer; Usually not good idea but saves on attorney fees |
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