Topic: Legal of HealthCare Mod
WHO IS LIABLE?
Bobby and Rachel were playing basketball on the school playground with a brand new backboard and rim build and installed by ACE Sports. When Bobby, with a boost from Rachel, tried to slam dunk the ball, he broke his wrist and also cut his wrist on the rim which had a small piece of metal sticking out from it.
The cut was so severe that Rachel was forced to take Bobby to the hospital on her bike. When they arrived at City General hospital, Bobby was immediately seen by a nurse who gave a large towel to Bobby. Nurse Williams told Bobby to put pressure on the cut while she tried to get a hold of his parents. Bobby was then directed to wait in the waiting room while his mother was contacted for insurance information for payment and consent.
On the way, Bobby ran into Dr. Andrews, a surgeon on his way to lunch. The surgeon took a look at Bobby’s wrist and told Bobby that he needed x-rays and immediate surgery. Ten minutes later, Nurse Williams told Bobby to go to the x-ray department. Johnny, the x-ray technologist took some x-rays and sent Bobby back. In his haste to get to the operating room for some emergency x-rays, Johnny left the films on the counter and failed to deliver them to a Radiologist for reading.
Bobby, his mother and Rachel waited in the waiting room again for approximately two hours. When his mother complained for the second time, within 10 minutes, Bobby was rushed to surgery after which he was left with permanent damage to his hand wrist because of loss of blood and nerve damage.
Bobby no longer has full use of his hand and wrist.
In an essay not to exceed 4 pages, respond to the following:
1. Evaluate the potential liability (negligence or other tort) of the various parties in this case. Be sure to discuss the elements of negligence as they apply to each party separately, and also discuss the application of EMTALA.
2. Does the negligent conduct of one or more parties supercede the liability of any other party or parties?
Note: Avoid restating the facts/scenario unless you are incorporating them into your discussion of liability.
Be sure to properly cite all references.
The main aim of the tortuous liability is to compensate the victim for injury and loss suffered from the actions (or omissions of any action) from the hospital. The main purposes of tort include: –
1. It compensates the injured for any damages suffered due to negligence on the part of others, hence acting as a source of insurance.
2. Acting as sanctions on the persons found guilty of negligence. It obstructs any future negligent behavior.
The elements to be produced to prove negligence has occurred include:-
1. The care-giver (in this case the hospital) owed a duty of care to the patient.
2. The hospital failed to confirm to the standard of care. In this case the hospital failed to provide immediate care.
3. As the hospital failed to provide a duty of care, the patient suffered (or was injured). The patient suffered permanent damage to his wrist. Hence, a relation between the failure to provide a standard of care to the patient, to his injury, is drawn.
4. The injury leads to consequential damages which can be calculated in terms of money. In this case the patient suffered from permanent damage to his wrist which was not functional for the rest of his life.
In the earlier part of the case, the nurse did not provide any immediate treatment to the patient and made him wait in the waiting room in order to call a relative regarding insurance and payment details. The hospital would have to respect EMTALA (The Emergency Medical Treatment and Active Labor Act) (Fosmire, M. S., 2003). This is an act primarily meant to prevent rejection of patients by the hospital and transfer of the patients. According to the act, patient’s requiring emergency treatment cannot be rejected by the hospital irrespective of their payment status. Patient’s can only be discharged on their own will or if their condition needs more advanced treatment requiring transfer to a better hospital. Hospitals are specifically prohibited from providing any delay to diagnostic and immediate treatment services to confirm the patient’s insurance or payment details. The hospital may however, seek information regarding the insurance status but not delay any screening or stabilization processes. Besides, the hospital should have a qualified and non-negligent physician who would attend to patients requiring emergency care.
In the second part of the case, the patient was made to wait for long in order to be given proper medical care. This led to excessive bleeding and nerve injury which resulting in permanent damage to the wrist. In this case, the elements of negligence have to be proved. The expert witness has to demonstrate the prevailing standards of medical care expected in that particular area. The hospital has to provide treatment in accordance with the standards of that area. It need not be superior, but reasonable standards. The expert witness has then to prove that due to failure of the medical professionals (to meet the appropriate standards of care), the patient’s injury resulted. The nature of the injury should be such that the patient suffers losses which can be calculated in terms of money. In this case, it has to be proved that failure of the doctor to treat the patient’s injury immediately has directly led to permanent damage.
In the case Haezer V. Randolph (Arizona court, 1980) (Hoffman, A. C., 1995), the plaintiff required to prove that the defendant’s delay in providing treatment to the relative (suffering from hypoglycemia) was the cause of death. However, the court said that merely loss of a non-specific increment in the chances of survival was not sufficient to prove that the standard of care provided was probably below normal.
In the in Bryan v. University of Virginia Medical Center case (1996) (Peake, W. H., 1997), the plaintiff sued the medical centre for failing to provide stabilizing medical treatment, ultimately resulting in the death of the patient. The hospital had to continuously stabilize the patient’s condition; no matter the period it was required. The plaintiff sought expansion of EMTALA. The court went on to say that once admitted, the care of the patient was a legal responsibility of the physician and the hospital. Laws against medical malpractice will apply in case EMTALA does not preempt.
In Cruz-Queipo v. Hospital Español Auxilio Mutuo de Puerto Rico case (Wagner, J. P., & Lai, M. A., 2005), the patient was brought in with chest pain. The hospitals regulations dictated that such patients be put in the emergency department and be given emergency care immediately. However, this patient was given only non-emergency care. The court said that the hospital followed inappropriate screening parameters. Failure to follow certain uniform regulations for all patients brought in for emergency care, irrespective of their insurance status, is a violation under EMTALA. Hence, EMTALA can now be expanded to cover adequacy of care.
In this case four parties are held potentially liable, namely the nurse, the X-rays technician, the physician, and above all the hospital. According to the legal concept of ‘joint and several liability’ (CBO, 2004), the patient can sue one or more defendants separately or together as per their choice. The defendants may be held liable individually or collectively for the loss suffered by the patient. The patient can claim the damages either from one of the defendants or all, depending on whom the court considers as liable.
The nurse had contributed to the patient’s loss because she did not provide immediate medical care to the patient and instead sought details regarding payment and insurance. She could be held liable for her actions of negligence. Even the radiographer was negligent as he delayed getting the X-ray images ready. However, following the decision of the Gold V. Essex County Council (1942, 2 ALL ER 237), the judge Lord Greene said that nurses and radiographers specifically could be considered as the servants of the hospital. They constantly worked under the directions of the physicians and the doctor, and hence the hospital could be held under vicarious liability (law of torts) for their negligent acts. Although the nurse and the radiographer have been held negligent, the hospital is liable and has to pay for the damages.
The physician examined the patient and even suggested an X-ray. However, the negligent act of the radiographer delayed the surgery and rendered the patient’s wrist permanently damaged. The physician and the radiographer could be held negligent for failing to act on time. However, the liability of the physician varies depending on his role. If the physician is employed by the hospital and the patient’s come seeking care, then the hospital can be held under vicarious liability. However, if the patient comes seeking a particular doctor, without considering the hospital, then the physician is responsible for his actions.
In the Jackson V. Power case (Feegel, J. R., 1995), the plaintiff fell from a cliff and was taken to a hospital. However, the physician Dr. Power did not detect internal injuries as a result of serious negligence. The court went on to say that the hospital was liable in this case, and should employ the services of a non-negligent physician. The hospital had to make sure that the patients are provided with non-negligent care in the trauma care centre, which was a non-delegable duty. However, if the patient choose a particular doctor, then it was not liable for any case of negligence. Instead in such cases, the managing doctor was held liable. Besides, the hospital has to appoint a doctor who is competent and non-negligent. In the case Carleto V. Shore Memorial Hospital (Feegel, J. R., 1995), the hospital was held liable for allowing a negligent physician to perform an operation negligent.
In the Pedersor V. Dumouchell Case (Feegel, J. R., 1995), the Court made it stricter for the hospitals to follow their own set of rules and regulations in controlling the conduct of physicians. In this case, a child was brought in injured and examined by a physician. He was suggested an oral surgery and handled over to an oral surgeon. The physician then left the hospital, but after the surgery, the child suffered cerebral anoxia and was left with permanent brain damage. The Court found the hospital negligent as it did not apply its own set of rules and regulations (that is the presence of the diagnosing doctor during the surgery).
Therefore, in this case the liability of the hospital supercedes the liability of the nurse, the physician, and the radiographer. It had to pay for the damages suffered by the patient.
CBO (2004). Limiting Tort Liability for Medical Malpractice. Retrieved December 03, 2006, from CBO Web site: http://www.cbo.gov/showdoc.cfm?index=4968&sequence=0
Feegel, J. R. (1995). Liability of Health Care Entities for Negligent Care. In: Sanbar, S. S., Gibofsky, A., Firestone, M., & LeBlang, T. R. (Eds), Legal Medicine (3rd Ed). St. Louis: Mosby.
Fosmire, M. S. (2003). Frequently Asked Questions about the Emergency Medical Treatment and Active Labor Act (EMTALA). Retrieved December 03, 2006, from EMATALA.com Web site: http://www.emtala.com/faq.htm
Hoffman, A. C. (1995). Medical Malpractice. In: Sanbar, S. S., Gibofsky, A., Firestone, M., & LeBlang, T. R. (Eds), Legal Medicine (3rd Ed). St. Louis: Mosby.
Peake, W. H. (1997). Recent Federal Cases Limit Emtala’s Reach. Retrieved December 03, 2006, from FAP Law Firm Web site: http://www.faplawfirm.com/emtala.htm
Wagner, J. P., & Lai, M. A. (2005). Appeal Court Holds EMTALA May Cover Adequacy of Treatment. Retrieved December 03, 2006, from Nossaman Healthcare Law Web site: http://www.envoynews.com/nossaman/index000090322.cfm