Tort Law

A tort is a civil wrong committed by one party against another, and where the law compensates
an aggrieved party by awarding damages.
General damages (350,000)
Past/future of earning capacity (depends on profession
Past/ future cost of care
Past/future housekeeping

The anatomy of a civil proceeding
Investigation
Pleadings (SofC, Sof D, third parties)
Document discovery (Affidavit of Records)
Oral discovery (questioning)
Case assessment
Expert opinions
End game
Trial
(appeal)


5% of cases go to trial


Why do patients sue?
Find out what happened
Vindication/validation of suspicions
Etc

A health professional's role in malpractice litigation
Treating professional (fact witness)
Defendant
Expert consultant (opinion witness)


What the patient has to prove
1. Duty of care owed
2. Harm or injury suffered
3. Substandard care (breach of the standard of care)
4. Substandard care caused the harm
Your most controllable element: standard of care

Standard of Care
average peer experience and qualifications
At the time, in the circumstances (so if a case happened in 2010, apply 2010 standards of
health care, not 2012)
Expert evidence is usually needed
"approved practice"
There is a 2 year period for a claim to be brought forward, but it depends on the
circumstance. Dependant on knowledge. Runs from dates the wronged should have
been discovered. Doesn't apply to people under 18 years of age.

Nursing liability risks: where can it go wrong?
Failure to: follow procedures and policies, recognize limits and ask for help, carry out
physician orders
Communication issues

How the patient proves
Facts: what the patient or bystander remembers; what the chart says(or doesn't); what
the caregivers admit.
Opinions: what the experts say in their reports; how their opinions hold up in court
Standard of proof: balance of probabilities (50%+)
Why Good Charting is Important
Clinical: effective communication among health care providers
Valuable tool for continuity of care
Legal
important legal record of care provided
Essential for defending health care providers: stand alone, memory refresher, dispute
resolver, expert opinion foundation
Hospital chart as legal evidence
hospital records play an integral role in med malpractice litigation
Each entry is scrutinized and dissected in order to determine if standards of care were met
and if there is a causal relationship between the care provided and the injury alleged.
Hospital records have inherent reliability based, inpart, on the following factors:
o Created pursuant to legislative and pro obligations
o Created by professionals trained to doc their clinical obs
o Created contemporaneously with the rec event
o Maintained and compiled pursuant to hospital policies
o Limitation periods
Common arguments by plaintiffs:
"if it wasn't charted, it wasn't done"
There are many instances where care is provided and obs are made without correlating
doc. E.g, if visual assessment and everything looks normal, this has clinical significance
but would not be charted
But if an active intervention is done, but not charted, it is problematic
Sloppy documentations=sloppy care
Doc physician notification
Careful doc of all discussions with and attendances by physicians is imperative
Should include:
o Who not the phys and when
o What the clinical changes, patient concerns, etc. where comm
o Physician's response
o It is also imp to doc any difficulties in contacting the physician, when and by
whom attempts were made, and any delay in the physician's response
Doc concerns of adverse events
Important to rec any matters of concern
Non-compliance with treatment or med advice
Instructions and advice given
Patient or family complaints or confrontations
Adverse events
Late entries
At times, it is understandable and appropriate not to chart contemporaneously
with the provision of care
E.g., dealing with ER doc may have to wait
There are well defined processes, often set out in policies to regulate late entries
o Specific notation that the entry is a "late entry"
o Date and time the late entry (both when it was made and when the care
was provided
o Explanation as to why the entry was late
Charting by Exception
Practice of documenting only abnormal findings or changes in clinical status
o This practice is common and appropriate in certain areas
o It is heavily criticized in areas where normative or reassuring clinical signs
req doc such as obstetrics
o It is important to maintain a consistent practice!
Electronic health records
EMR doc is a recent issue in litigation. For most part, standards and practices
should be the same regardless of whether the documentation is on a paper record
or an EMR.
During transition phases, it is crucial that paper rec and EMRs are consistent.
Issues arise when charting practices deteriorate when using an EMR
Audit trails become important, as revisions to the EMR or access to the EMR
cannot be done without leaving tracks
Obstetrics damages are the most frequent in court.


If any questions

my@fieldlaw.com
780-643-8767