Legal Aspects of Health Care

In determining the liability of the parties, it is necessary that the following be first established by the claimant: a) duty; b) breach of duty; c) causation; d) injury. (â€Å"Tort† p. 1) It is clear that once a patient enters the premises of the hospital, an implied contract is thereby created and the hospital is under obligation to attend to the needs of the patient with due care and diligence. This duty was however breached when the hospital employees failed to provide immediate attention to the patient’s needs despite the urgency and immediacy of the situation. It is also clear that the delay of more than one hour from the time the patient was admitted to the hospital despite the finding that the patient needed to undergo immediate surgery is a breach of that duty of care. There is also a proximate cause between the breach and the injury suffered by the patient, which is partial paralysis of his hands. The question left to be determined is who is responsible for the damage suffered. In this case, the nurse committed a breach of her duty of care and was negligent. Instead of giving immediate medical attention to the patient, the nurse decided to first determine if the patient is covered by insurance. The surgeon also committed a breach of his duty of care and due diligence to patient. The medical profession is founded on the duty of due diligence which doctors owe to their patients. In this case, despite the finding of the need for immediate surgery the surgeon merely proceeded to his way without even referring the patient to other doctors who are on duty and who are not on break. The x-ray technologist was likewise negligent when he failed to deliver the x-rays to the radiologist for examination despite the urgency of the situation. The fact that there are other patients in the hospital is not an excuse since every hospital is required by law to have an adequate number of medical personnel to attend to the needs of all its patients. Finding that the hospital employees are negligent, the City General Hospital itself cannot escape its liability. Hospitals can no longer escape their liability under the doctrine of charitable immunity. Karen A. Dean, 1999 p. 1) Under the doctrine of resondeat superior, the negligence of its employees is imputed to them because they are the ones who have control and supervision of their employees. The fact that the hospital is not negligent is not a defense so long as it can be proven that its employees were negligent. Further the recent trend in the new cases is that it is no longer a defense that there is no employer-employee relationship between the physician or the x-ray technician or the nurse to escape its liability (Gene A. Blumenreich p. ) The immunity from liability of hospitals is being restricted by the recent cases. The 1992 case of Uhr vs. Lutheran General Hospital (226 Ill. App. 3d 236, 589 N. E. 2d 723) confirms that a hospital may be held liable for the negligent acts of an independent contractor. Consider also the 1993 case of Gilbert v. Sycamore Community Hospital where the Illinois Supreme Court abrogated the common-law immunity of hospitals for Independent Contractor negligence (156 Ill. 2d 511, 622 N. E. 2d 788) Ib. Yes. The Emergency Medical Treatment and Active Labor Act (EMTALA) applies in this case. The law imposes upon hospitals the obligation to provide medical screening examination to determine whether an emergency medical condition exists. This medical screening examination must be conducted regardless of the Medicare status, insurance coverage or the ability to pay of the patient. (Daris McNelice p. 1) The failure to discharge this obligation renders the hospital liable for civil damages to the injury that the patient may suffer. In this case, the nurse who attended the patient when he arrived for treatment did not immediately conduct medical screening examination to determine the patient’s condition. The act of the nurse in providing the patient with a towel was far short of the obligation required by law. Instead the nurse made an inquiry whether the patient is covered by insurance. Though the law does not prohibit the hospital from inquiring into the ability to pay of the patient, it does require that this inquiry should not delay the conduct of the medical screening examination. The purpose of the law is clear which is to protect against discrimination against patients. This was violated in this case. The patient was lucky that he bumped into a surgeon who determined that he is in a serious medical condition. Despite this however, the hospital still failed to provide proper medical attention to the patient despite the finding that an emergency medical condition exists. Because of the hospital’s failure to comply with the provisions of the said law it may be held liable for damages. 2. The liability for negligence of the nurse, surgeon and the x-ray technologist is distinct and separate. Their liability is independent of each other. It is not a defense in tort cases that the negligence of one is superior to another. The only determining point is that there was a breach of duty committed by these hospital employees and that this breach was the proximate cause of the injury of the patient. As such, the patient who was injured may hold them liable together with the hospital in one suit. However, ordinarily the patients only file suit for damages against the hospital. In case he is able to recover, the hospital has the option of filing claims against these negligent employees who are solidarily liable for their negligence to the hospital. Legal Aspects of Health Care Nowadays, most health care organizations are well equipped with standards and laws concerned in the provision of health care supervision and management. Yet, many health care organizations face legal issues regarding their conduct especially with regards to patients’ rights, institutional legal responsibility, opposing trust and relationship with the employees. The article entitled Traditional Theories of Liability enumerated four theories of liability dealing mostly with the patients concerns.These theories of liability are as follows: Negligence (or Direct Liability) for Injuries Caused by Cost Containment Measures discusses that health care organization can be held responsible for the negligence committed that can cause impairment to the patient under their supervision. In simple terms, negligence is a careless act of the health care provider towards a patient. A health care provider is held liable for a negligent act according to Tiwari and Baldwa if â€Å"the damage is s o obvious that there is no need for any proof of negligence like operating on the wrong part of the body of the patient or undertaking a wrong process of operating (Tiwari & Baldwa, 2001).†The Corporate Negligence Doctrine stresses out on the responsibility of the hospital itself to provide health care to its patient. As stated by Randall, â€Å"Corporation negligence will hold an organization liable for the careless performance of a provider when the organization was negligent in hiring or supervising the provider itself (Randall, 1999) .â€Å"Respondeat Superior Doctrine, as pointed out by Randall, â€Å" the employer is held responsible for the neglectful acts of an employee provider even though the employer itself has not acted negligently (Randall, 1999).† The employer (hospital itself) is held liable for the careless act inflicted by an independent contractor.According to Randall, â€Å"Ostensible agency liability is a type of explicit liability in which a heal th care organization can be apprehended liable for a health care provider's negligence (Randall, 1999).†A case where in the negligence of the doctors and other medical providers were committed was the case of Darryl Dukes versus U.S. Healthcare, Inc., Germantown Hospital and Medical Center; William W. Banks, M.D; Charles R. Drew Mental Health Center; Edward B. Hosten, M.D. Darryl Dukes, having an ear problem, consulted his physician, William W. Banks.As stated on the case provided by FindLaw,† Darryl underwent a surgery and Banks organized a recommendation asking for blood studies. Darryl handed that medical recommendation to the laboratory of Germantown Hospital and Medical Center but the hospital declined to carry out the tests. The hospital did not provide any explanation for their negative response (â€Å"D.C. Civil Action No. 93-cv-00577†, 2006).† After that, Dukes sought for a second opinion from Dr. Edward B. Hosten, M.D who also asked him to undergo a blood test. Dukes medical condition got worse and he died. It was stated by the article provided by the FindLaw that â€Å"Darryl's blood sugar level was very high. That condition purportedly could have been detected through a well-timed blood test(â€Å"D.C. Civil Action No. 93-cv-00577†, 2006).†The case, dealing more on the negligence of the medical provider, had gone through a long and critical process. As cleared by the case, â€Å"Dukes’ family filed a suit against organization through which Darryl, being a member of Health Maintenance Organization, accepted his medical treatment. The HMO is considered responsible for the wrongful conduct of doctors and other health care   providers which is under the discussion of ostensible theory (â€Å"D.C. Civil Action No. 93-cv-00577†, 2006).† The case was dismissed and the court granted the HMO’s motion because according to the statement on the article (FindLaw), â€Å"any ostensible agency claim ought to be made on the basis of what the assistance arrangement provides and is consequently associated to it(â€Å"D.C. Civil Action No. 93-cv-00577†, 2006)†ReferencesDukes v. United States Health Care Sys., Inc. , 848 F. Supp. 39, 42 (E.D. Pa. 1994) (UNITED STATES COURT OF APPEALS 2006).Randall, V. R. ( 1999). Traditional Theories of Liability  Retrieved October 28, 2006, fromhttp://academic.udayton.edu/health/02organ/manage01e.htm#N_290_Tiwari, S. K., & Baldwa, M. (2001). Medical Negligence Retrieved October 28, 2006, from http://www.indianpediatrics.net/may2001/may-488-495.htm