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Flashcards in Lawsuits and the Legal Process Deck (31)
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1
Q

What are torts

A

are personal, civil injuries not includign contractual relationships

2
Q

What are the four elements that are looked at in a malpractice lawsuit

A

duty owed the patient
breach of that duty
causation
injury or damages

3
Q

What is it called when the evidence is destoryed

A

spoliation

4
Q

In a malpractice suit the burden of proof is on the plaintiff unless

A

the evidence was spoliated

5
Q

If the standard of clear and convincing evidence is being used by the court what must happen

A

a plaintiff’s attorney would have to convince the fact finder that there’s about a 75% chance that the evidence is true for each required element

6
Q

What are some doctrines that are often used as defense for nurses

A

respondeat superior

7
Q

What is respondeat superior

A

the employer hold some responsibility in a negligent act when the person is acting within there scope

8
Q

What is res ipsa loquitur

A

its a ruling that can be used to prove guiltiness when there was an injury but the responsible person cannot be identified on the premise that the injury wouldnt occur in the absense of negligence

9
Q

What three common circumstances reduce the negligence and malpractice liabilities of a nurse

A

contributory and comparative negligence

assumption of risk

10
Q

What are examples of contributory negligence

A

failure to take meds

failure to keep followup appointment

11
Q

What is contributory megligence

A

if the pat is found to have a part in their injury they dont receive compensation

12
Q

What is comparative negligence

A

the amount the injured party receives is decreased by the percentage of contribution to their own injuries

13
Q

How fast should you respond to a summons and why

A

immediately bec in most states failign to respond within 20-30 days results in a default judgement on yo u

14
Q

What are some cons about who to notify after receiving a summons

A

if covered by employer insurance contact their risk managment or legal department
if self insured - look at your policy and follow the directions

15
Q

When you contact a representative for your lawsuit what should do throughout the process

A

document the time, name and there instructions
hand deliver or certified mail the lawsuit papers to them
get a signed and dated receipt

16
Q

What two things must be present for respondeat superior to be in affect

A

employer must have been in control

nurse was acting in their scope

17
Q

What other factors are usu considered in respondeat superior cases

A

Usual place of employment
Whether the act’s purpose, in whole or in part, was in furtherance of the employer’s business
The extent to which the act was similar to or different from authorized acts of the employer
The extent to which the act was a departure from the employer’s customary methods
The extent to which the employer should have expected such an act to occur

18
Q

What is the borrow servant doctrine

A

when an employer lends the services of its employee to another employer/supervisor

19
Q

Who would be held liable in the borrowed servant doctrine

A

the supervisor who was lent the nurse

20
Q

What is the dual servant doctrine

A

same as borrowed servant doc except the hospital and physician might be held liable if its shown that the nurse was working for both parties

21
Q

Under the master servant doctrine, what must hospitals do to stay legal

A

Periodically review staff competency
Investigate credentials before giving priviledges
Terminate unqualified practitioners
make education available so they can be competent

22
Q

What is a collective bargaining agreement

A

Contract between employer and a labor union

23
Q

Whats indemification

A

Allows the employer to recover money from a respondeat superior lawsuit from the individual involved

24
Q

What must happen to apply indemnification

A

The employer is at fault in a liability suit only because of the employee’s negligence
The employer incurs monetary damages because of the employee’s negligence

25
Q

What act allows suing the gov

A

Federal Tort Claims Act

26
Q

What does the Age Discrimination in Employment Act protect against

A

discriminating against people above the age 40

27
Q

Examples of how the age discrimination in empl act is used

A

Placing older nurses in positions that are being phased out as a means of easing the worker out of a job
Forcing older workers to waive their rights as part of a termination program

28
Q

What are the 4 criteria for filing a age discrim lawsuit

A

Be 40 to 70 years old.
Perform job responsibilities according to the employer’s expectations.
Be discharged.
Be replaced by a substantially younger person.

29
Q

peolpe the anti discrim act protect agaisnt

A
Handicap
Physical disability
Pregnancy 
National origin
Sexual orientation
mandating certain languages
30
Q

What 4 questions must be answered yes for a discrimatory lawsuit

A

Does the employee belong to a minority group?
Was the employee performing the job at a level that met the employer’s legitimate expectations?
Did the employee suffer an adverse employment action?
Did other employees, nonmembers of the same minority group, not suffer similar adverse employment action?

31
Q

What are the 3 exemptions to firing an at-will employee

A

when its against public policy like whistle blowing
When their is an implied contract
The “good faith and fair dealing” exception