f. As medicine and technology combine to produce ever-increasing miracles, it
is a world that is ever growing, ever changing, yet always fascinating. It is a world that
you, as health care providers, need to have some basic familiarity with. Your primary
focus, of course, is on patient care, not lawsuits. Nonetheless, the fact is that a failure
to meet the standards of patient care may produce serious legal problems. The risk
management process, of course, focuses not simply on yesterday's accident, but on
prevention of tomorrows. Its concern for foresee ability of risk and taking precautions to
safeguard against that risk is really very similar (as we shall see) to the concerns
1-2.
DEFINITIONS
a. Tort. This is the breach of a duty, other than a contractual duty, which gives
rise to an action for damages. To create a lawsuit, though, we need more than the duty
and its breach. We also need causation and injury. Without these last two elements,
we may have negligence but nobody was hurt; that is, we were lucky (as was the
patient). So, in terms of torts, think about the four elements of: Duty, Breach,
Causation, and Injury. Although not actually an "element," something else we need is a
plaintiff; that is, somebody who wants to sue us. Try to avoid getting patients upset or
mad enough to want to sue, or that in and of itself can produce a lawsuit. We do not, of
course, guarantee results, and some patients may suffer adverse complications no
matter what we do (as such is simply the state of our technology.) Still, some patients
may perceive a bad result to be the result of negligence. If we act toward patients in a
cold and callous manner, they are more likely to want to sue, whether or not there is a
valid basis for doing so. An example is a case where a doctor kept sending bills to a
deceased patient. The husband informed the doctor several times to send the bills TO
HIM and not to his deceased wife. When the bills kept coming to his wife, the husband
sued the doctor. This is a good example of how you can create a lawsuit {McCormick v.
Haley, 37 Ohio App. 2d 73, 307 N.E. 2d 34 (1973), based on the negligent infliction of
emotional distress.
b. Crime. This is a wrong committed against society itself (with society as the
victim), as opposed to a tort (that is considered to be a wrong against an individual.) A
crime may violate one's duty TO DO something, or a duty NOT TO DO something.
1-3.
CHARACTERISTICS OF TORTS VERSUS CRIMES
a. Difference Between a Crime and a Tort. A tort is a private or civil
wrong/injury. The victim is the individual who was hurt. A crime, on the other hand, is a
public or penal wrong/injury. In the case of a crime, the victim is society and not simply
the individual who was injured. Tort cases are pursued by the private individual/entity
who was injured (to protect private interests), whereas criminal prosecutions are
brought by the district attorney in the name of the State. In other words, in the case of a
tort, the state doesn't prosecute, the victim does. Thus, whether or not the wrongdoer is
taken to court depends on the victim's desire to sue. In the case of a crime, the victim
cannot prevent the state from bringing criminal charges (since crimes are prosecuted by
the government to protect its own interests).
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