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ELM Exchange Newsletter
October 2011
www.elmechange.com
info@elmexchange.com |
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Improper Conduct with Anesthetized Patient
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The fact that the actions are taken by a physician or healthcare provider does not necessarily mean that a lawsuit arising out of the conduct is about a patient's treatment, lack of treatment or other departure from accepted standards of healthcare. The resolution of allegations resulting from non-care conduct does not require expert testimony, does not implicate any standards of care, does not involve hiring or professional training on the part of the hospital, and does not relate to medical or healthcare.
In this case, many of the factual allegations did not even take place while he was a patient, but occurred after the fact in the context of workplace discrimination. No expert testimony from a medical or healthcare professional was needed to determine the propriety of the nurses' actions, as no professional judgment or expertise was implicated in determining whether the elements of the alleged assault and intentional infliction of emotional distress claims were met. The same is true for the anesthesiologist, who was sued because he was a supervisor present during the incident and failed to prevent the assault − not because of any duty arising from his role as a healthcare provider.
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PRINCIPLE:
A claim is a healthcare liability claim if it involves standards of medical care and allegation of a negligent act or omission that is an inseparable or integral part of the rendition of medical services. Actions that are not the rendition of medical care may result in personal and hospital liability not requiring expert testimony to be presented by the patient and quite possibly not covered by malpractice insurance. |
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Correct Answer |
| 1. Any action taken by a healthcare provider that involves a patient will be seen as treatment related.
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False |
| 2. Practical jokes involving an anesthetized patient, even if a co-employee, are inherently unprofessional.
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True |
| 3. A physician supervisor has no obligation to prevent hospital staff from improper actions upon a patient who is under the physician's care.
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False |
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For more than 20 years, ELM Exchange, Inc. (ELM stands for Education in Legal Medicine) has worked with hospitals, health systems, and insurance carriers to educate healthcare providers about risk and patient safety. ELM programs are a tested and proven offering that provides organizations with a method to proactively address critical risk issues and to easily monitor and document those efforts. |
ELM is accredited by the Accreditation Council for Continuing Medical Education to provide continuing medical education for physicians. |
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All Web site design, text, graphics, the selection and arrangement thereof, are Copyright © 2011 by ELM Exchange, Inc. ALL RIGHTS RESERVED. Any use of materials in this e-mail or on this Web site, including reproduction, modification, distribution or republication, without the prior written consent of ELM, is strictly prohibited. Case Analysis is not a source of legal advice for actual legal problems. The authors and producers are not offering legal advice. Although the case studies used are based on actual medical malpractice cases, the facts have been adapted to illustrate various clinicolegal issues. Legal principles have been adduced from common law decisions, not from statutory or regulatory laws. The Case Analysis quiz component asks readers to conduct a situational analysis by applying the legal principles illustrated in the case to the situations presented in the quiz questions. The questions are derived from the legal principles introduced in the case study and are intended to be thought-provoking, the questions are not necessarily derived from the materials discussed in the case. Legal considerations involved in medical malpractice claim adjudications arise in specific factual contexts that require case-specific analysis, interpretations and the applications of often times unclear or changing principles. Because of variations in fact patterns and local jurisdictions, specific consultation should be obtained before formal action is taken based on any information contained in this publication. Information in this publication is not intended to be, and should not be used as a substitute for legal advice or contextually based claim adjudication. For specific guidelines on any actual or potential malpractice claim, or for an opinion on a specific liability exposure, consult an attorney.
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