Legal Compensation & Ethical Duties of a Health Care Professional " Alexander M. Voudouris Pace Law Firm

Transcription

1 Legal Compensation & Ethical Duties of a Health Care Professional " Alexander M. Voudouris Pace Law Firm

2 Overview" Learning objectives Legal Compensation Compensation for Personal Injury Potential Ethical Issues Duty to the Court

3 Principle of a Law Suit" The principle behind a law suit is that the negligent person who caused damages to another is responsible or liable to the injured person to compensate them for their damages, and to make them whole again, insofar as monetary damages allow.

4 Legal duty to give proper medical care" All doctors, nurses, hospitals, and other health care providers have a legal duty to provide proper medical care to patients. Doctors can refuse to accept a patient for personal reasons or if they and the patient disagree over treatment. But doctors who accept a patient must give that patient proper medical care. If they fail to give that care, a patient can sue them for medical malpractice. The two main types of medical malpractice are negligence and failure to get a patient s informed consent. The failure to obtain informed consent is received as an assault.

5 Professional Negligence" Grounded in allegations of professional negligence or substandard care: Elements of proof against the Health Care Professional (HCP) 1. Owed the patient a legal duty of care 2. Violated or breached the duty owed in some way 3. Breach of duty caused injury to the patient 4. The patient sustained the kinds of losses for which a court may award compensation in the form of monetary damages

6 Negligence" Doctors or health care providers are negligent if they fail to give you the type (or standard) of care that a reasonable doctor or health care provider would give in similar circumstances. If the negligence causes one s injuries or illness, then the doctor or health care provider may be liable to pay compensation to the patient. However, the key issue is whether the doctor made a reasonable decision call that a reasonable HCP would have made in the same situation even if it turns out to be the wrong decision.

7 Standard of Care" The standard of care differs from place to place It also varies with the level of specialty of the HCP The standard made be higher for specialists The standard vary with time The standard made be based on the community and the hospital that treats you

8 Failure to get a patient s informed consent" A HCP has to tell you about your condition, the nature of the proposed treatment, the risk of the treatment and other options that you may have Lacking the above a patient cannot consent and as mentioned may lead to allegations of assault

9 Ethics" Ethics refers to a set of principles of right conduct, a theory or system of moral values, or the rules or standards governing the conduct of a person or members of a profession. The primary goal of ethics is to protect clients, provide guidelines to practicing professionals, and enhance the profession as a whole.

10 Ethics Continued " Moral principles that govern a person's or group's behaviour. The moral correctness of specified conduct. In the context of a HCP, the rules or standards governing the conduct of a person or the conduct of the members of a profession.

11 Interdisciplinary Teams" Health Care Professionals need to understand their scope of practice and their limitations as set out in their provincial legislation. Equally, they need to understand the scopes of practice of the other health professionals in their team Health Care Professionals need to be aware of, and comply with, policies that govern their interdisciplinary interactions.

12 You have been summonsed to testify or worse listed on a Statement of Claim Why Me? " To obtain testimony in court as treating practitioner To obtain testimony in court as an expert witness To obtain documentation in your possession

13 Treating or Fact Witness" As a treating practitioner, family physician, nurse, a paramedic, etc you can be called upon to be a fact witness A fact witness recites facts and/or events as opposed to an expert witness, whose testimony consists of the presentation of an opinion, a diagnosis, etc..

14 Expert Witness" As an Expert Witness your duty is to the Court and not to whomever hired you. You must also; Function as an educator Tell the truth and refrain from using technical terms Stay within your area of expertise Do no misrepresent who you are Demonstrate the foundation(s) for your opinion Comply with case law

15 Remember" You are not the patients advocate Treating witness ~ You are there to assist the court to understand the substantive features of the case by providing the facts only Expert Witness ~ you are there to state your opinion based on the evidence

16 No Defense File Documentation ~ If you are supposed to write it down, or check it off and you didn t ~ Then it never happened.

17 Quote Nothing is more devastating to an innocent physician s defense against the allegations of medical malpractice than an inaccurate, illegible or skimpy record, except for a record which has been changed after the fact, and therefore inevitably compromises the otherwise defensible case. Brad Cohn, MD, Pediatrician

18 Another Quote I have been involved with the defense of physicians in professional liability claims since One common thread that has existed in all claims seen over the years is that the medical record is the physicians greatest asset in defending him or her against allegations of negligence. If more physicians realized that clear, legible medical records are their best defense and they documented accordingly, most claims would never be brought, and many claims that are contemplated would not be pursued. Stephen D. Stimel, Former Claims Manager Medical Insurance Exchange of California

19 Do s and Don ts" Prepare, Prepare, Prepare Know the file backwards and forwards Stay calm and carry on

20 The truth" Good testimony will tell the truth about the case. Bad testimony will tell the truth About the witness

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