Tort Law in Healthcare

Tort is defined as a civil wrong, other than a breach of contract, which can be committed against a person or property either real or personal. A tort could be an injury or harm to another that amounts to a civil wrong. The court can provide a remedy in the form of an action for damages they occur. Negligence is a civil wrong or a personnel wrong. Negligence is a tort, it is the accidental commission and omission of an act that a careful person would or would not perform under any given situations.

Tort law’s primary purpose is to give relief to any injured parties for harms that may be caused by others. Torts impose liabilities on the responsible party that cause the harm. Torts allow a shift in the concern or burden of loss of the party that was injured.

There are three general categories: intentional torts which is intentionally harming a person, negligent tort which is accidentally harming a person by making a mistake, and strict liability tort which is the liability for making and selling products that are broke and cause harm.

If the defendant knew that he or she were committing a wrong that harmed another person, this would result through his or her actions or omissions. Negligent torts happen when the defendant’s actions were unsafe. Lastly strict liability torts do not rely on the degree of care that the defendant used but are more focused on whether a certain result or harm had manifested.

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With intentional torts, the act must be intentional, not just a careless act. The most common intentional tort in healthcare is forcing unwanted care on a patient. The care may benefit the patient’s health, but if the patient refuses, the physician cannot force the care. Another form of intentional torts is battery. Battery is unconsented touching and only occurs if there is physical contact. Battery claims against healthcare providers are based on attacks. One particular case involved a patient who became pregnant while being romantically involved with her physician. She allowed him to examine her to confirm the pregnancy, but he then repeatedly forced a metal instrument into her uterus, causing a miscarriage. The patient claimed wrongful abortion and this was considered battery.

With negligent tort, a doctor must perform certain duties. The three duties are: determining whether to take the case, determining the treatment to give, and effectively administrating the treatment to the patient. In any of the duties are not performed correctly, there is negligence to the patient. Black’s Law dictionary defines negligence as “conduct, whether action or omission”. One example of negligent tort is the case of State of Haryana and Ors V. Smt. Santra. A woman who already had many children had chosen to have a sterilization surgery. Smt Santra performed the operation, only operating on the right fallopian tube and not operating on the left. The woman later became pregnant and gave birth to another child.

Strict liability tort is causing damage to life, limb, or property without having to prove intent or negligence. An example of strict liability in prescription drugs is with the company Merk. In 1999 Merk released a new non-steroidal anti-inflammatory drug called Vioxx. This drug proved to be horrible for the patients who took it as they suffered from strokes, heart attacks, and death. Merk denied that the drug had any link to these problems, but the University of Michigan Medical School did a study proving the correlation between Vioxx and an increased risk of heart attack and stroke. Merk then changed the label warning patients of the potential risks. Another study was done in 2004 that confirmed the drug was linked to severe cardiovascular problems. After the study, Merk was forced to do a global recall, but by this time, roughly 25 million people in the U.S. alone were taking the drug. Individuals taking Vioxx could sue Merk under strict liability, with no need to prove negligence.

There are four elements to negligence: duty to care, breach of duty, injury, and causation. The plaintiff must present these elements to recover any damages caused by negligence. These elements have to be presented in this order. First is duty to care, the plaintiff has to prove that there was an existing relationship between him or herself and the defendant. The definition of duty to care is a legal obligation of care, performance, or observance imposed on one to safeguard the rights of others. Breach of Duty is after duty of care. The plaintiff in this element must show that there was a breach of duty due to the failure of complying with the standard of care that is required. Injury is next after breach of duty. For this element there has to be injury or actual damage done to the plaintiff. Without this harm or injury then there isn’t any liability. Lastly, the fourth and final element to create a case for negligence is called causation or proximate cause. For this element to be considered negligent the defendant action that were negligent would have to cause the plaintiff harm.

In tort law the injured or affected party can seek compensations for their damages. The victim can attempt to obtain economic and noneconomic losses. The defendant or victim can seek lost income and medical bills that may have piled up due to an injury that may have happened from negligence. Also, a victim can seek compensation for any mental stress, pain, and suffering. This is known as a noneconomic damage.

Torts came about because in the 1970s and 1980s a medical malpractice crisis had occurred in The United States. During that time, an increase of medical malpractice claims were filed, as well the size of awards made in medical malpractice actions. A total of 14,000 malpractices were made against physicians in 1975, awarding $171,000 on average for these cases. This had caused a chain reaction because of the medical malpractice claims and their jury awards for the victims. Premiums had gone up from 100% to 750%. The increase in premiums, and the loss of private insurance companies resulted in physicians leaving practices or even retiring from their own practice of medicine. A tort reform was needed because of these factors that made premiums go up.

Tort reform was created to decrease insurance premiums for consumers. Since insurance premiums would decrease, in return it would increase the number of practicing physicians and lower the costs of healthcare for consumer. This would result in a dramatic improvement for all available healthcare. The arguments made for tort reform inspired state legislatures all around the country in the mid 1980s. Since then tort reform for malpractice has been widely accepted.

More recent tort reform, also known as the second generation of tort reform, is alternative dispute resolution (ADR). The ADR refers to all disputes of resolution techniques that assist plaintiffs and defendant work out conflicts out side of the courtroom. A perk of ARD is that it is more suited to conflicting events than is the tort system. Patients can only be compensated by litigation who are harmed by negligence. Alternate dispute resolution can reach patients who are experiencing adverse events due to negligence or not. Several hospitals have accepted a new program called early apology. This program lets physicians and hospital administrators contact the injured patient and express their sympathy to the patients about conflicting events. The purpose of that program is to protect the relationship between the physicians and patients and creates dialogue. The event could have been a simple complication, which would be relayed to the patient who then can save time and put all of their efforts in healing rather than pursue litigation. If the adverse events happened because the physicians was at fault then both parties could save time and money that would have been wasted on contentious litigation.

A woman was paralyzed due to negligence at the University of Cincinnati. Cynthia Adae was transported to the Clinton Memorial Hospital on June 28th, 2006. Cynthia had complained of right shoulder pain and was having limited range of motion of her right upper extremity as well as a cough and fever. The doctors that were on duty at that time came to a conclusion that Cynthia could have an infection or thyroid abnormality. They were considering doing a spinal tap but ended up not doing it. After Cynthia had gotten a series of blood work done, Cynthia was discharged the next day without knowing her results. The blood tests showed that Cynthia was suffering from an infection and the doctors were notified on July 2nd 2006, but they failed to advise the patient of the test results and no action was further taken. On July 1st 2006 she was admitted to the hospital again and then discharged once more without a diagnosis of her condition. Four days later Cynthia returned back to the hospital and it turned out she had a epidural abscess. Unfortunately, Cynthia had developed a progressive paraplegia which is weakness of her upper and lower extremities, slurred speech, and acute renal failure. Due to negligence of the hospital, Cynthia had suffered significant injuries, and is now permanently physically disabled at 50 years old. Since then she had to undergo several dangerous and painful diagnostic and therapeutic procedures, which caused Cynthia physical and mental distress.

Experts have incurred such expenses and loses, but she will suffer severe pain and disability for the remainder of her life. The University of Cincinnati was sued by Cyntia Adae and her attorneys for $2.3 million.

In many states, caps have been set on the damages that victims can receive. These can be umbrella caps, which limit economic and non-economic damages, or it may just be a cap on non-economic damages. California’s Medical Injury Compensation Reform Act of 1975 set a cap on non-economic damages. The cap is $250,000, which has never been adjusted for inflation. When there are caps set, lawyers who work on a contingency fee basis are less likely to take medical cases. Since the lawyer would receive a percentage of the winnings, and not a lump sum, they will only receive a percentage of the capped winnings. In the states where caps have been implemented, malpractice insurance premiums have dropped due to the decreased rate of litigation. Some states also implement pre-suit litigation procedures to decrease the number of lawsuits. This requires those who claim negligence to make a preliminary showing of negligence to a board before pursuing a lawsuit.

A survey done in 2008 asked physicians about their beliefs towards malpractice risk. It found that 68% of physicians in five states with the highest malpractice reported ordering tests or consultations to try and avoid a risk of malpractice, not because they felt the test was necessary. In five states with the lowest malpractice reported, still 64% of the physicians reported doing the same.

Tort law in healthcare is necessary to assure patients receive the best care. It ensures the doctors are not intentionally or non-intentionally negligent towards their patients. It protects the patients if doctors are negligent. However, it also makes doctors more scared for their jobs and can make them request tests and other procedures just to cover their bases rather than feeling it is the right thing to do for the patients. This is a topic that will continuously be brought up and may change through the years and through different generations as the topic of healthcare is currently at the forefront of political discussions.