Intentional Tort = ?
Intentional Wrong
Intentional Tort (wrong):
- An intentional wrong committed against an individual or property.
- Actions or omissions resulting in injury to patient or patient property.
- Provider knows with some certainty negative results are probable.
- The act must be intentional, not merely careless or reckless.
This “injury” can be obvious or can be seemingly innocuous:
- Touching someone in a way that may reasonably by construed as offensive
- Forcing unwanted care on a patient (doing a surgery without a valid consent)
- Interfering with a person’s right to exclusive use of his/her property
Conduct that gives rise to intentional tort can be actsor omissions.
- Acts = ?
- Ommisions = ?
Intentional Wrong
Conduct that gives rise to intentional tort can be Actsor Omissions.
(a) Acts:
- Affirmative, volitional, intended conduct seeking a specific result.
- E.g. nontherapeutic touch during a massage.
- E.g. striking a patient (committing battery)
(b) Omissions:
- Intentional and wrongful failure to act when one has legal duty toact.
- E.g. A surgical nurse not disclosing that a surgical instrument had dropped and become unsterile during surgery.
Examples of Intentional Tort in Healthcare = ?
Intentional Wrong
Examples of Intentional Tort in Healthcare:
- Assault and battery (Including sexual assault and battery)
- Defamation of character
- False imprisonment
- Fraud
- Invasion of privacy
- Sexual misconduct
Intentional Tort:
- Assault = ?
- Battery = ?
Intentional Wrong
Intentional Tort (Assault and Battery): These terms are used interchangeably by the public, but actually define 2 separate torts that often go together.
(a) Assault: Eeasonable anticipation, apprehension or fear of an impending battery.
- The legal system serves toprotect a person’s right to live free of fear or anticipation of battery at the hands of another.
- There is no requirement of actual contact with the person.
- E.g. A person flinching or wincing in anticipation of an impending blow by another.
(b) Battery: Unjustified and unexcused harmful, offensive or otherwiseimpermissible intentional contact by an offender.
- Battery refers to the actual wrong act of physically harming someone.
- E.g. Striking a patient
- E.g. Surgery without consent
(c) This includes sexual assault & battery.
(d) Assault and battery can also be violation of criminal law.
True or False:
- A provider has the legal right to defend him/herself from harmful or offensive contact by another person, including a patient = ?
- A healthcare provider may use whatever force is necessary to ward off an attack = ?
Intentional Wrong
Self-Defense - A Legitimate Defense to Assault/Battery:
- True - A provider has the legal right to defend him/herself from harmful or offensive contact by another person, including a patient.
- True - A healthcare provider may use whatever force is necessary to ward off an attack.
Occurs when someone’s reputation and integrity are tarnished or damaged because of malicious intent by another person = ?
Intentional Wrong
Defamation of Character:
- Occurs when someone’s reputation and integrity are tarnished or damaged because of malicious intent by another person.
Two primary types of defamation:
- Slander = ?
- Libel = ?
Intentional Wrong
Two primary types of defamation:
(1) Slander:
- Defamatory communication transmittedorallyor by signing
(2) Libel:
- Defamatory communication transmitted by all other means includingwriting, film, video/audiotape, computer transmissions,email.
Four Defenses to Defamation = ?
Intentional Wrong
Defenses to Defamation:
(1) Defense of truth:
- If what was said is, in fact, the truth.
(2) Privilege:
- Certain members of society are allowed to defame one another.
- E.g. Judges, congress persons, high level executives.
(3) Constitutionally protected speech:
- The media; must prove they acted without actual knowledge of falsity.
(4) Mandatory Reporters:
- Health care professionals are normally immune from defamation liability from good-faith reporting of suspected abuse (discussed next lecture).
Intentional Tort:
- False Imprisonment = ?
Intentional Wrong
Intentional Tort - False Imprisonment:
(a) Allegation thatprovideracts intentionally to restrict patient’s movement unlawfully.
(b) Physically or verbally restricting movement.
(c) Examples:
- Involuntary hospitalization of a patient with psychiatric diagnosis.
- Unjustified physical restraints inpatient
(d) The victim must be conscious of fact they wereconfined.
- Comatose or even disoriented patients cannot be ‘falsely imprisoned’ by restraints, threats or involuntary hospitalization.
“An intentional perversion of the truth” = ?
Intentional Wrong
Intentional Tort - Fraud:
- “An intentional perversion of the truth”
- In healthcare, often seen as fraudulent billing for services
Examples of healthcare fraud:
- Double billing: Submitting multiple claims for the same service.
- Phantom billing: Billing for a service visit or supplies the patient never received.
- Upcoding: billing for services at a higher level of complexity than the service provided.
- Misrepresenting dates of services.
- Misrepresenting the provider of the service
- Bribes / Kickbacks: Offering or receiving money to induce or in return for referral of patients.
Fraud:
- Stark Law = ?
Intentional Wrong
Stark Law (physician self-referral law):
- Prohibits physician self-referral of Medicare/Medicaid patients toservices that the physician (or an immediate family member) has a financial interest.
- (Discussed more in conflicts of interest lecture)
Intentional Tort: Fraud
Intentional Tort - Invasion of Privacy:
- Unreasonable Intrusion = ?
- Misappropriation = ?
- Public Disclosure of Private Patient Facts = ?
Intentional Wrong
Intentional Tort - Invasion of Privacy:
(1) Unreasonable Intrusion:
- Intentionally intruding physically or otherwise upon solitude orseclusion of a patient.
- In a manner considered highly offensive to an ordinary, reasonable person.
- E.g. Opening a patient’s mail; looking through patient’s bag or belongings.
- E.g. (Inpatient)Unauthorized photographing of a sleeping patient
(2) Misappropriation:
- Unauthorized use of a patient’s name or patient photo; oftenfor defendant’scommercial gain.
- E.g. Overuse or misuse ofpatient’s name/information in research studies.
(3) Public Disclosure of Private Patient Facts:
- Defendant publicizes information that is personal in nature.
- Disclosure is highly offensive.
- Not legitimately in public interest.
- E.g. Release of medical records to someone without need to know, without patient consent.
- E.g. Discussing any private facts about a patient (at nurse station or staff room,lunch room)
(d) NOTE:
- Patient right to privacy protected under HIPAA (covered in other lectures).
Three forms of legally actionable invasion of privacy in health care are:= ?
Intentional Wrong
Forms of legally actionable invasion of privacy in health care are:
- Unreasonable Intrusion
- Misappropriation
- Public Disclosure of Private Patient Facts
Two classifications of sexual abuse involving healthcare professionals and patients = ?
Intentional Wrong
Intentional Tort - Sexual Misconduct:
- Healthcare professionals become privy to many intimate details about patient’s private lives.
- Patients may develop intense affection for their treating clinician.
- Patients may be vulnerable because of the trust that the patient places in health care provider.
Two classifications of sexual abuse involving healthcare professionals and patients:
(1) Sexual Assault/battery:
- Nonconsensual
(2) Consensual:
- E.g. A patient falls in love with provider, provider reciprocates:
- Concept of ‘consent’ on part of patientshas no real meaning in intimate relationships with health care professionals. Provider is responsible.
- We have a legal and ethical duty to act principally in the patient’s best interest.
- This includes ensuring that our relationships with patients don’t turn into intimate, personal or sexual relationships.
Four venues of legal action in PT = ?
Intentional Wrong
Multiple Venues of Legal Action:
- A health care provider confronted with an allegation of professional misconduct may facelegal action in one or more of the following venues based on a single incident:
(1) Civil Court:
- Malpractice
(2) State Board of Healing Arts:
- Adverse administrative proceedings affecting one’s professional license/certification.
(3) APTA:
- Before a judicial committee of a professional association of which the respondent is amember, for a violation of professional ethics.
(4) Criminal Court
Conduct that violates a recognized duty owed to society as a whole = ?
Intentional Wrong
Criminal act:
- Conduct that violates a recognized duty owed to society as a whole.
- Addresses possible illegal actions in health care.
- Must be proven beyond a reasonable doubt.
Criminal Law in the Health Care Environment:
Four examples of crimes of violence = ?
Intentional Wrong
Criminal Law in the Health Care Environment - Crimes of Violence:
(1) Assault & Battery:
- Assault: Apprehension/fear;
- Battery: Unlawful application of harmful or offensive force
- Health care provider facing theseallegations will need to defend incriminal court, civil court, beforelicensure boards and professionalassociation ethics committees.
(2) Homicide:
- Killing of another human being by another; committed purposely orknowingly; or committed recklessly withindifference to value of human life
- E.g. Physician assisted euthanasia
(3) Manslaughter:
- Unlawful homicide without malice or specific intent to kill the victim.
(4) Negligent Homicide:
- Conduct constitutes gross negligence on part of health careprofessional resulting in death of victim.
- Falls well below the standard of care established by law forreasonable protection of others.
Criminal Law inthe HealthCare Environment:
Three examples of nonviolent crimes = ?
Intentional Wrong
Criminal Law inthe HealthCareEnvironment - Nonviolent Crimes:
(1) Burglary:
- Unlawful breaking and entering with specific intent;
- Aggravatedburglary = use of deadly weapon.
- E.g. Breaking into clinic
(2) Larceny:
- Unlawful taking of anotherperson’s property with intent todeprive owner of its use permanently.
- E.g. Shoplifting
(3) Embezzlement:
- Theft of monetary value and/or property by someone in (fiduciary)special trust to the victim.
- E.g. Your accountant stealing moneyfrom private practice, falsifying books
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Core Values and Standards of Practice22
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Introduction to Ethics23
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Ethical Foundations & Intro to Law31
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The Law of Health Care: Malpractice and State Practice Acts38
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Intentional Wrongdoings18
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Conflicts of Interest,Integrity, and Wrongdoing30
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Beneficence & Autonomy25
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Burn Out7
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Caring for Patients15
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Ethical and Legal Issues in Employment and Research12
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Cultural Competence14
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Defensible Documentation11
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Health Insurance and Billing22
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Leading the Team: PTA20
