MedMalMonthly: Legal Primer
Thu, 08/02/2018 - 10:12pm
- A dispute between two parties.
- Burden of proof is based on a "preponderance of evidence".
- Punishment is monetary without threat for incarceration.
- Government or state brings action against an individual/ entity accused of wrongdoing.
- Burdern of proof is "beyond a reasonable doubt".
- Punishment is incarceration or fines.
Negligence - There are 4 elements.
- Duty: The physician had a duty to act. Easily established in most cases in the ED via EMTALA. Some less clear cut cases are below:
- Telephone advice establishes a duty to patient as well.
- Physician advice given in an informal setting like at a party.
- Duty to known third party (Tarasoff Case)
- Duty to unknown thirdy party (know your mandatory reporting rules for your state)
- Breach: The physician breached the duty toward the patient by falling below the standard of care.
- Standard of care is what a doctor of like or similar training would do in like or similar circumstances.
- Does not require perfect care or even high quality care.
- Proximate Cause: Plaintiff must prove that physician's actions led to damages.
- Damages: The negligence of the defendant was a proximate cause of the injury and damages to the plaintiff.
- Economic: objective and measurable - medical bills, lost earnings and wages.
- Non-economic: subjective - pain and suffering.