What are torts
are personal, civil injuries not includign contractual relationships
What are the four elements that are looked at in a malpractice lawsuit
duty owed the patient
breach of that duty
causation
injury or damages
What is it called when the evidence is destoryed
spoliation
In a malpractice suit the burden of proof is on the plaintiff unless
the evidence was spoliated
If the standard of clear and convincing evidence is being used by the court what must happen
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
What are some doctrines that are often used as defense for nurses
respondeat superior
What is respondeat superior
the employer hold some responsibility in a negligent act when the person is acting within there scope
What is res ipsa loquitur
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
What three common circumstances reduce the negligence and malpractice liabilities of a nurse
contributory and comparative negligence
assumption of risk
What are examples of contributory negligence
failure to take meds
failure to keep followup appointment
What is contributory megligence
if the pat is found to have a part in their injury they dont receive compensation
What is comparative negligence
the amount the injured party receives is decreased by the percentage of contribution to their own injuries
How fast should you respond to a summons and why
immediately bec in most states failign to respond within 20-30 days results in a default judgement on yo u
What are some cons about who to notify after receiving a summons
if covered by employer insurance contact their risk managment or legal department
if self insured - look at your policy and follow the directions
When you contact a representative for your lawsuit what should do throughout the process
document the time, name and there instructions
hand deliver or certified mail the lawsuit papers to them
get a signed and dated receipt
What two things must be present for respondeat superior to be in affect
employer must have been in control
nurse was acting in their scope
What other factors are usu considered in respondeat superior cases
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
What is the borrow servant doctrine
when an employer lends the services of its employee to another employer/supervisor
Who would be held liable in the borrowed servant doctrine
the supervisor who was lent the nurse
What is the dual servant doctrine
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
Under the master servant doctrine, what must hospitals do to stay legal
Periodically review staff competency
Investigate credentials before giving priviledges
Terminate unqualified practitioners
make education available so they can be competent
What is a collective bargaining agreement
Contract between employer and a labor union
Whats indemification
Allows the employer to recover money from a respondeat superior lawsuit from the individual involved
What must happen to apply indemnification
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
What act allows suing the gov
Federal Tort Claims Act
What does the Age Discrimination in Employment Act protect against
discriminating against people above the age 40
Examples of how the age discrimination in empl act is used
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
What are the 4 criteria for filing a age discrim lawsuit
Be 40 to 70 years old.
Perform job responsibilities according to the employer’s expectations.
Be discharged.
Be replaced by a substantially younger person.
peolpe the anti discrim act protect agaisnt
Handicap Physical disability Pregnancy National origin Sexual orientation mandating certain languages
What 4 questions must be answered yes for a discrimatory lawsuit
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?
What are the 3 exemptions to firing an at-will employee
when its against public policy like whistle blowing
When their is an implied contract
The “good faith and fair dealing” exception