Good Samaritan law: A law designed to protect a Good Samaritan from legal liability.

Such laws usually specify that whoever in good faith provides emergency (and
sometimes non-emergency) medical services shall not be civilly liable unless their acts
constitute wanton misconduct

TORT - A negligent or intentional civil wrong not arising out of a contract or

statute. These include "intentional torts" such as battery or defamation, and torts
for negligence.

A tort is an act that injures someone in some way, and for which the injured person
may sue the wrongdoer for damages. Legally, torts are called civil wrongs, as
opposed to criminal ones. (Some acts like battery, however, may be both torts and
crimes; the wrongdoer may face both civil and criminal penalties.)

Under traditional law, family members were prohibited from suing each other for
torts. The justification was that allowing family members to sue each other would
lead to a breakdown of the family. Today, however, many states recognize that if
family members have committed torts against each other, there often already is a
breakdown in family relationships. Thus, they no longer bar members from suing
each other. In these states, spouses may sue each other either during the marriage or
after they have separated.

Normally, tort lawsuits against a spouse are brought separate and apart from any
divorce, annulment or other family law case. Alabama, Georgia, Nevada, New York
and Tennessee, however, allow or encourage combining the tort case with the family
law case; New Jersey requires it.

The jurisdictions that still prohibit one family member from suing another include
Arizona, Delaware, Hawaii, Illinois, Iowa, Louisiana, Missouri, Ohio, Texas, Utah,
Wyoming and Washington, D.C. These places may make an exception when the tort
is intentional. See, for example, Bounds v. Candle, 611 S.W.2d 685 (Texas 1980);
Townsend v. Townsend, 708 S.W.2d 646 (Missouri 1986) and Green v. Green, 446
N.E.2d 837 (Ohio 1982).

An injury; a wrong; hence the expression "an executor de son tort", of his own
wrong.

Torts may be committed with force, as trespasses, which may be an injury

to the person, such as assault, battery, imprisonment; to the property in possession;
or they may be committed without force. Torts of this nature are to the absolute or
relative rights of persons, or to personal property in possession or reversion, or to
real property, corporeal or encorporeal, in possession or reversion: these injuries
may be either by nonfeasance, malfeasance, or misfeasance.
At common law, simple battery is a misdemeanor and the elements of the offense are:

• An unlawful application of force;

• To the person of another;

• Resulting in either bodily injury or an offensive touching.

The prosecutor must prove each element beyond a reasonable doubt. The common law
elements serve as a basic template, but individual jurisdictions may alter them and they
may vary slightly from state to state.

Under modern statutory schemes, battery is often broken down into gradations for the
purposes of determining the severity of punishment. For example:

• Simple battery may include any form of non-consensual, harmful or insulting

contact, regardless of the injury caused. Criminal battery requires an intent to
inflict an injury on another, as distinguished from a tortious battery.
• Sexual battery may be defined as non-consensual touching of the intimate parts of
another.
• Family violence battery may be limited in its scope between persons within a
certain degree of relationship: statutes with respect to this offense have been
enacted in response to increasing awareness of the problem of domestic violence.
• Aggravated battery is generally regarded as a serious offense of felony grade,
involving the loss of the victim's limb or some other type of permanent
disfigurement of the victim. As successor to the common law crime of mayhem,
this is sometimes subsumed in the definition of aggravated assault.

In some jurisdictions, battery has recently been constructed to include directing bodily
secretions at another person without their permission. In some jurisdictions this
automatically is considered aggravated battery.

In some jurisdictions, the charge of criminal battery also requires evidence of a mental
state (mens rea).

[edit] Distinction between battery and assault

As a first approximation to the distinction between battery and assault:

• the overt behavior of an assault might be A advancing upon B by chasing after

him and swinging a fist at his head, while
• that of an act of battery might be A actually striking B.

Battery requires (1) a volitional act (2) that results in a harmful or offensive contact with
another person (3) committed with the intent to cause a harmful or offensive contact or
with a reckless disregard as to whether such contact will result. Assault is an attempted
battery or the act of intentionally placing a person in apprehension of a harmful or
offensive contact with their person.

Assault/Battery

In most states, an assault/battery is committed when one person 1) tries to or does

physically strike another, or 2) acts in a threatening manner to put another in fear of
immediate harm. Many states declare that a more serious or "aggravated" assault/battery
occurs when one 1) tries to or does cause severe injury to another, or 2) causes injury
through use of a deadly weapon. Historically, laws treated the threat of physical injury as
"assault", and the completed act of physical contact or offensive touching as "battery,"
but many states no longer differentiate between the two.

Malpractice vs negligence:
Abstract

Negligence committed by a professional is malpractice, but not all malpractice is

negligence.

The Joint Commission defines negligence as “failure to use such care as a reasonably
prudent and careful person would use under similar circumstances” and malpractice as
“improper or unethical conduct or unreasonable lack of skill by a holder of a professional
or official position; often applied to physicians, dentists, lawyers, and public officers to
denote negligent or unskillful performance of duties when professional skills are
obligatory.”1 The commission's definition further states: “Malpractice is a cause of action
for which damages are allowed.”1

Most lawsuits against nurses are for alleged violations of tort law. In general terms, a tort
is an action or omission that harms someone. According to Nursing Malpractice:
Sidestepping Legal Minefields, a tort is

a civil wrong or injury resulting from a breach of legal duty that exists by virtue of
society's expectations regarding interpersonal conduct or by the assumption of a duty
inherent in a professional relationship (as opposed to a legal duty that exists by virtue of a
contractual relationship)…. Malpractice refers to a tort committed by a professional
acting in his professional capacity.2

The law distinguishes between unintentional and intentional torts. An unintentional tort
results from negligence. In order to prove negligence, a plaintiff must show each of the
following 2:

* The defendant owed the plaintiff a specific duty (in nursing malpractice cases, the
standard of care).
* The defendant breached this duty.
* The plaintiff was harmed.
* The breach of duty caused the harm.

In contrast, “an intentional tort is a deliberate invasion of someone's legal right. In a

malpractice case involving an intentional tort, the plaintiff doesn't need to prove that you
owed him a duty. The duty … is defined by law, and you're presumed to owe him this
duty.”2 In such a case, the plaintiff has to show only that the defendant breached her or
his duty and that the breach caused the plaintiff harm. Examples of intentional torts
include assault, battery, false imprisonment, invasion of privacy, and slander. (For more,
see “Nurses, Negligence, and Malpractice,” September 2003.)

NEGLIGENCE AND MALPRACTICE

The terms negligence and malpractice are frequently used interchangeably. However,
there is a difference in the two terms.

Negligence is:

• A general term that denotes conduct lacking in due care;

• Carelessness; and
• A deviation from the standard of care that a reasonable person would use in a
particular set of circumstances.

Anyone, including non-medical persons, can be liable for negligence.

Malpractice a more specific term that looks at a standard of care as well as the
professional status of the caregiver. To be liable for malpractice, the person committing
the wrong must be a professional.

The courts define malpractice as the failure of a professional person to act in accordance
with the prevailing professional standards, or failure to foresee consequences that a
professional person, having the necessary skills and education, should foresee.

The same types of acts may form the basis for negligence or malpractice.

• If performed by a non-professional person the result is negligence;

• If performed by a professional person the acts could be the basis for a malpractice
lawsuit.

In order to prove negligence or malpractice, the following elements must be established:

• Duty owed the patient;

• Breach of duty owed the patient;
• Foreseeability;
• Causation;
• Injury; and
 • Damages.

There are different levels of responsibility or liability for malpractice.

• An individual is accountable for acts of negligence personally committed;

• The manager or supervisor may be held liable for the acts of the nurse if there has
not been appropriate delegation of duties or adequate supervision;
• An employer may be liable for the acts of its employees for failing to do the
following:
o hire staff who has the qualifications and skills to perform the necessary
functions;
o provide opportunities for the professional growth of the staff such as
workshops and seminars;
o provide adequate library services;
o provide opportunities for exchange of ideas;
o provide adequate and sufficient equipment and supplies and maintaining
them; and
o ensure that managers and supervisors carry out their duties competently.

maleficence
Evil doing, especially. To others.

Origin: L. Maleficentia. Cf. Malfeasance.

Source: Websters Dictionary

Non-maleficence refers to the concept of keeping the patient free from harm.

Fidelity is a notion that at its most abstract level implies a truthful connection to a source
or sources. Its original meaning dealt with loyalty and attentiveness to one's duty to a lord
or a king, in a broader sense than the related concept of fealty. Both derive from the Latin
word fidelitas, meaning "faithfulness."

In modern human relationships, the term can refer to sexual monogamy. In western
culture this often means adherence to marriage vows, or of promises of exclusivity or
monogamy, and an absence of adultery. However, some people do not equate fidelity in
personal relationships with sexual or emotional monogamy
Confidentiality

Definition

Confidentiality is the right of an individual patient to have personal, identifiable medical

information kept private; such information should be available only to the physician of
record and other health care and insurance personnel as necessary.

Description

Patient confidentiality means that personal and/or medical information given to a health
care provider will not be disclosed to others unless the patient has given informed
consent. This is becoming extremely difficult to ensure in an age of electronic medical
records and third-party insurance payers.

Viewpoints

Because the disclosure of personal information could cause professional or personal

problems, patients rely on physicians to keep their medical information private. It is rare
for medical records to remain completely sealed, however. The most benign breach of
confidentiality takes place when clinicians share medical information as case studies.
When this data is published in professional journals the identity of the patient is never
divulged, and all identifying data is either eliminated or changed. If this confidentiality is
breached in any way, patients may have the right to sue.

The greatest threat to medical privacy, however, occurs because most medical bills are
paid by some form of health insurance, either private or public. This makes it difficult, if
not impossible, to keep information truly confidential. Health records are routinely
viewed not only by physicians and their staffs, but by insurance companies, medical
laboratories, public health departments, researchers, and many others. If health
insurance is provided by an employer, they too may have access to their employees files.

Professional implications

The American Medical Association (AMA) encourages doctors to guard their patients'
privacy despite the widespread use electronic health records. The organization advises its
members to get patient consent for any and all releases of medical information, and
recommends that all office personnel and consultants be aware of the paramount
importance of maintaining confidentiality. Such policies must be in place, especially in
care institutions, in order to maintain Joint Commission on Accreditation of Healthcare
Organizations (JCAHO) accreditation. Most confidentiality releases identify the types of
information that can be released, the people and/or groups that have been permitted
access to the information, and limit the length of time for which the release is valid.

Despite these safeguards, unfortunately, patient confidentiality has eroded with the
almost-complete dominance of health-maintenance organizations and other types of
third-party payers. In light of this, the medical profession must remain constantly vigilant
that their patients' right to privacy is upheld. Confidentiality is essential for a good
relationship between patient and practitioner, whose duty to keep information private
dates from the Hippocratic Oath. If personal information is disseminated without the
patient's permission, it can erode confidence in the medical profession and expose health
care professionals to legal action.

Physicians are increasingly being sued by patients whose information has been released
without their permission, as the following legal cases show. Even though the plaintiffs do
not always prevail, the costs of legal action are burdensome to both sides:

• Estate of Behringer v. Princeton Medical Center, 592A.2d 1251 (N.J. Super. Ct.
Law Div. 1991). The late Behringer, a surgeon who worked at Princeton Medical
Center, was diagnosed with and treated for AIDS at the same hospital.
Behringer's chart, which included several references to his diagnosis, was kept at
the nurses' station on his floor with no special protection. His condition became
widely known as a result, and the hospital began requiring his patients to sign a
form acknowledging the risk to their health. Ultimately, the doctor's surgical
privileges were suspended. Behringer's estate sued the hospital for its failure to
take reasonable steps to protect his privacy. The hospital was found to have
breached confidentiality by leaving the chart out in the open, but the court said
they did not discriminate against Dr. Behringer by requiring his patients' informed
consent.
• Velazquez v. St. Clare's Hospital, (Kings County Supreme Court, New York,
1994). Nydia Velazquez was admitted to St. Clare's Hospital in 1991 after
attempting suicide. In 1992, while she was running for election to U.S. House of
Representatives, copies of her medical records were faxed anonymously to
several newspapers, which ran them in front-page stories. It was never determined
whether hospital personnel were responsible for the disclosure. Regardless,
Velazquez sued the hospital for breach of contractual and fiduciary duties of
confidentiality, for wrongful disclosure, and for negligence in maintenance of the
security of her medical records. She won both the seat in Congress and the
lawsuit.
• Doe v. Methodist Hospital, 690 N.E.2d 681 (26 Med.L. Rptr. 1289 (1997)),
Hancock County Superior Court, Indiana. According to the filed complaint, Doe,
a postal worker who was HIV positive, disclosed his HIV status to paramedics
when he was taken to the hospital after a heart attack. The paramedics noted his
status on their report, which became part of Doe's medical file. Several coworkers
eventually learned of his condition and discussed his HIV status. They were sued,
along with the hospital and some of its employees, for invasion of privacy and
other wrongful conduct. The court found that Doe's privacy had not been invaded,
nor had he been slandered or libeled.

Legal framework
Each state, and the federal government, has enacted laws to protect the confidentiality of
health care information generally, with particular attention paid to information about
communicable diseases and mental health. For example, through the 1960s substance and
alcohol abuse were treated as mental illnesses, with patient confidentiality determined by
the laws in each state, since at the time the state was responsible for mental health care
and treatment.

In the early 1970s, however, the rising numbers of those needing substance abuse
treatment came to the

attention of the federal government, because drug-related activity, including the treatment
for substance abuse, could be the basis for criminal prosecution on a federal level.
Congress concluded that this might stop many who needed treatment from seeking it.
They enacted a strict confidentiality law to limit disclosure of information that could
reveal a patient's identity.

Confusion ensued when practitioners who were treating substance abusers were required
to follow two practices for patient confidentiality—one mandated by the state, the other
dictated by the federal government. With the varying degrees of protection provided by
state mental health laws, the confusion grew further still. While all states specify
exceptions to confidentiality, few have spelled out the necessary elements of valid
consent for disclosure of mental health information. Some states allow disclosure of the
following types of mental health information without client consent:

• disclosures to other treatment providers

• disclosures to health care services payers or other sources of financial assistance
to the patient
• disclosures to third parties that the mental health professional feels might be
endangered by the patient
• disclosures to researchers
• disclosures to agencies charged with oversight of the health care system or the
system's practitioners
• disclosures to families under certain circumstances
• disclosures to law enforcement officials under certain circumstances
• disclosures to public health officials

Providers are increasingly concerned that these exceptions are not addressed uniformly,
particularly when providers and payers do business across state lines. This results in
open-ended disclosures that specify neither the parties to whom disclosure is to be made
nor the specific information allowed to be revealed.

The critical nature of confidentiality

Both the ethical and the legal principles of confidentiality are rooted in a set of values
regarding the relationship between caregiver and patient. It is essential that a patient trust
a caregiver so that a warm and accepting relationship may develop; this is particularly
true in a mental health treatment.

KEY TERMS

Joint Commission on Accreditation of Healthcare Organizations (JCAHO)—The

accrediting organization that evaluates nearly 20,000 United States health care
organizations and programs. Accreditation is maintained with onsite surveys every three
years; laboratories are surveyed every two years.