Informed Consent and Malpractice

There are ethical and legal reasons why doctors must adequately inform patients about proposed treatments or procedures, especially in regard to risks and dangers, and be satisfied that patients understand and consent to such measures. This arises principally out of respect for the autonomy of the patient. Second, if a doctor undertakes any procedure which involves touching the patient without consent, the doctor is guilty of an assault, or more precisely in legal terms, a battery, and an action in trespass may be brought against the doctor in a civil or a criminal court. Third, doctors who fail to adequately inform their patients about their condition, treatment options or material risks of treatment, may be sued on the grounds of negligence.

Consent may be obtained orally, in writing or be implied. The more major the proposed treatment, such as a surgical procedure or invasive investigation, the greater is the need that the patient be fully informed and the greater is the desirability that the patient's consent be attested to in writing. That consent be in writing is not a legal requirement.

The existence of a signed consent form does not constitute conclusive evidence of adequately informing a patient; consent forms are more usefully regarded as an important reminder that sufficient information be given for the consent to be valid and as prima facie evidence that the discussion took place. Traditionally, written consent need not be obtained when medications are prescribed, but the duty nevertheless to warn patients of significant side effects must not be overlooked.

Schools and Negligence

Negligence is careless or reckless behavior that causes injury to another person. It is by far the most common tort in education. School districts and individual educators can be found negligent for injuries to students, employees, or visitors to the school if they had a duty to live up to a standard of care recognized in law, they failed to live up to the duty, another person was injured as a result of their failure, and the extent and value of the injury can be measured.

Teachers have a general duty to behave in all situations as would a reasonable and prudent teacher with similar training and physical capacity. The exact level of supervision and care that is required in any particular situation depends on the circumstances, but the school is not expected to guarantee that accidents will never occur.

School districts may also be held liable for injuries caused by hazards on their property. These cases generally turn on the adequacy of the design of buildings and equipment, maintenance, and whether conditions adhere to local building codes. In most states, liability is greater with regard to invitees to the school as opposed to trespassers; however, the school is still likely to be held liable if a child trespasser is injured by an encounter with an attractive nuisance like an unattended accessible swimming pool.

Elements of Valid Consent

For consent to be valid it needs to be freely given; this includes avoiding pressuring a patient through failure to provide sufficient time for the patient to consider matters and involve disclosure by the doctor of the relevant (material) issues.

The consent must be specific for the proposed procedure(s). The catch-all phrase 'any other procedures which may be deemed necessary' should only be used in regard to unforeseen and urgent problems and if it is used a note should be made of the matters discussed under this phrase.

The consent must be given by a person who is competent to consent. Under ordinary circumstance, a husband does not have the legal power to give consent on behalf of his wife, a wife on behalf of her husband or children on behalf of their parents. Parents can generally consent to medical procedures for their children provided that the proposed procedure is in the child's 'best interests'.

To be legally competent to give consent, a patient must generally be an adult (eighteen years of age or over). The patient must also have the cognitive capacity to understand the medical condition, the options for treatment, what the doctor is recommending, any material risk and what may happen if no treatment is given. The treating doctor is responsible for assessing in each case whether the patient is competent to understand. A higher level of understanding is required for more complex or risky procedures.

Medical Malpractice Compensation

Along with preventing injuries, medical malpractice lawsuits also compensate injured patients. People who bring successful malpractice claims generally deserve compensation. However in many cases, the victims are generally undercompensated.

In medical settings malpractice would be referred to as professional or gross professional misconduct. It is the act of engaging in practice with malicious intent with the specific aim of neglecting the practitioner's professional duty through intentionally unethical professional conduct. It is generally taken to mean behavior which is knowingly wrong. It usually involves a practitioner following a course of action designed to meet his or her own needs.

In our legal system, the lawyer representing the plaintiff in a medical malpractice lawsuit generally does not get paid unless the patient gets paid. When the patient gets paid, the lawyer gets a share. Recovery for pain and suffering gives patients the means to pay the lawyer's share and still have enough money left to do what they can to put their lives in order.

In addition, patients who win or settle a medical malpractice lawsuit typically have to repay their health insurer for the costs of the treatment for their injuries. By federal law all Medicaid and Medicare expenses related to the injury must be repaid, and most employee benefit plans also require people to repay the plan out of the proceeds of a lawsuit. As such a major portion of the compensation goes into repayment.

Schools and Governmental Immunity

There is considerable variation in state law on the question of governmental immunity. In a few states, governmental immunity protects school districts from liability for the tort of negligent hiring or retention. Some states allow suits regarding nondiscretionary functions only. Others limit the dollar amounts that may be collected. Still others permit suits only for personal injury or death or only regarding dangerous conditions of property. A few states generally allows tort suits against teachers only for “willful and wanton” misconduct, but this rule is subject to exceptions that make schools vulnerable to certain other kinds of suits. Despite these variations, the trend is to limit governmental immunity, thus increasing the likelihood of school districts being held liable for tortious acts.

In addition to governmental immunity, a second type of immunity protects certain government officers from tort liability. Judges and legislators enjoy absolute immunity from tort suits regarding judicial or legislative acts even if performed in bad faith, with malice, or with corrupt motives. School board members as individuals traditionally enjoy absolute official immunity.

In recent times, many states have enacted statutes revising common law official immunity doctrines. These statutes may draw distinctions regarding the scope of immunity in terms of discretionary acts versus ministerial acts, acts within the scope versus outside the scope of employment, or curricular versus noncurricular functions, among others.

Workplace Trauma

Within organizations, case law and legal statutes place specific requirements on the employer to provide and maintain a safe working environment and to keep abreast of current knowledge and research in the area of traumatic stress.

Where trauma occurs in an organization, there is a need for the employer to protect the health and well-being of the workforce. In order to meet its duty of care the organization needs to be fully aware of those employees that are particularly vulnerable and the situations that are most likely to cause post-traumatic stress. The longer-term effects of trauma can be extremely distressing and may involve anxiety, depression, dissociation and social problems such as alcoholism and the inability to maintain relationships.

The law attempts to protect employees by placing a duty of care on the employer. In order to meet this duty the organization has to put in place a number of policies and procedures including ensuring that there are adequate risk assessments, safe practices and post-trauma support for employees that become involved in traumatic events.

Unfortunately, the law itself can cause further harm to victims of traumatic exposure. The main difficulties involve the length of time it can take to bring a case to court and the use of multiple assessments. However, many employees have been successful in claiming damages from their employer for failure to provide a safe place of work, safe practices and procedures and support.

Sports Accidents

Everyone who participates in any form of sport or recreation be it as an amateur or a professional runs the risk of injury.  Some of these injuries are 'occupational hazards', and but for others the participant may seek financial compensation from the person responsible. That 'person' may be either a fellow participant (more common in contact sports such as rugby, or inherently hazardous activities such as golf and archery) or an organizer (most likely in activities such as gymnastics where vital equipment has to be kept up to standard).

In almost all civil claims for damages arising out of a sporting accident, it is being alleged that someone was 'negligent'. The law of negligence states that damages must be paid by A to B where it is proved that A owed a 'duty of care' to B not to injure B, that A was in breach of that duty of care and that B suffered injury as a result. It is for the court to assess whether or not A does owe a duty of care to B, which is by no means a foregone conclusion in every case.

It is established that participants in recreational activities owe a duty of care to fellow participants and spectators not to be negligent, in the sense that they show a careless disregard for the safety of others: thus, negligently swinging a golf club to demonstrate a stroke or a deliberate foul tackle in football have been held to be situations where a duty of care exists. To establish a duty of care situation a plaintiff must prove the defendant acted recklessly or carelessly.