Law and Healthcare

Law and Health Care

Andrew Weber

HSA 515

Dr. Griffin

July 17, 2011

Introduction

The health care industry in the United States is a very complex and diverse system of hospitals, clinics, and various care and training facilities. All people in the health care industry are governed by the same set of rules, regulations and laws. When a patient believes that one of those laws or rules have been broken it is often the patient's responsibility to prove that they have been wronged by the physician or the medical care facility. There is a set way that a patient must establish wrong doing and there are specific things that must be proven to indict a physician or proposed guilty party. Cases involving the health care industry are carried out in the standard judicial circuit in the United States, there are not special courts for health care crimes and the plaintiffs and defendants are held to the same standards as any other parties involved in a court case.

Identify and explain the four elements of proof necessary for a plaintiff to prove a negligence case

The plaintiff in a medical malpractice case must be able to prove that there was an applicable standard of care. The baseline for standard of care is formulated by the presumed actions of an average person when put in the situation presented. Since an average person is not qualified to be a doctor the courts have adopted a special circumstance for medical negligence cases. The standard of care is based on the average qualified physician (Showalter, 2007). The plaintiff must also prove that there was a deviation from the proven standard of care. There must be clear evidence that suggests that the person in question did not meet the prescribed standard of care and did not act on a level equal to that of a reasonable physician. The plaintiff must prove that there is a connection between the deviation in standard of care and the injury, and the plaintiff must provide evidence of the injury (NASH, 2009). Clear evidence of an injury is paramount to establishing negligence and the correlation between the injury and the negligent act must also be clearly proven.

Explain how standard of care can be proven

Before standard of care can be proven it must be clearly defined. The standard of care for a physician is based on what a reasonable physician would do. A reasonable physician can be defined as a licensed physician that practices in the same field of care as the physician in question and is qualified to perform the same types of procedures that the physician in question performs (Showalter, 2007). Standard of care is the result of a patient and doctor contractual agreement for health care services. When a patient enters into a relationship with a physician for treatment then the physician is then held to the standard of care (LouisvilleLaw, 2004). Standard of care can be proven with expert testimony from other qualified physicians and from previous medical cases involving the same circumstances that are presented in the current case (Showalter, 2007). The doctor has the responsibility to both treat the patient and to also avoid any foreseeable harm that the patient may face from treatment or lack of treatment. An example of proof of standard of care could be comparing a surgical procedure performed on one patient in a hospital to the same surgical procedure performed on a different patient by a different physician in the same hospital.

Explain the principle of "vicarious liability" (respondeat superior)

Vicarious liability is based on the respondeat superior theory, which states that a physician is responsible for negligent acts performed by others under his supervision (Showalter, 2007). The superior is responsible for the actions of the agents or employees. This includes nurses and other medical staff that operate under the supervision of the physician. The physician is held accountable for the overall medical care of the patient and can be held liable for negligence performed by and medical staff that treat the patient based on the orders of the physician. An example of vicarious liability would be a patient being transfused blood products that in turn causes the patient to experience circulatory over load. The blood bank in the hospital would prepare the units for transfusion and the nurse would administer the units to the patient. Since the staff operated under the orders of the physician then the physician would