Define and discuss negligence and distinguish between the basic forms and degrees of negligence (Case Assignment)
Identify and distinguish between applicable statute of limitations (Session Long Project)
Identify and discuss defenses against recovery (Case Assignment)
Discuss tort law in the context of refusal by insurance companies to pay for treatments (Threaded Discussion)
A tort is defined as a civil wrong (other than a breach of contract) committed against a person or property for which the law provides a remedy in the form of a lawsuit for damages. There are four basic purposes of tort law:
1. Preservation of the peace between individuals by providing a substitute for vengeance or vigilantism.
2. Culpability To find fault for the wrongdoing Placing the blame on the wrongdoer.
3. Deterrence To discourage the wrongdoer (tort-feasor) from committing future wrongful acts.
4. Compensation To indemnify the injured person of wrongdoing. Attempt to make the injured party whole again.
STATUTE OF LIMITATIONS
Statute of Limitations vary from state to state, and depend on the nature of the case. For example, in California, a lawsuit for personal injury resulting from an automobile accident must be filed within one year from the date of the injury/accident. While some states may have similar statutes and language, the case law construing or interpreting the language varies.
DEFENSES AGAINST RECOVERY
Once a plaintiffs case has been established, the defendant may put forth one or more defenses against the claim. The following are examples of legal principles that may relieve a defendant from liability in a negligence action.
Assumption of Risk is knowing that a danger exists and voluntarily accepting the risk by exposing oneself to it, knowing that harm might occur. This defense provides that the plaintiff expressly gave consent in advance; thus, relieving the defendant of his/her obligation. For example, a healthcare provider who agrees to provide care to a patient with a communicable disease and later contracts it, cannot sue the patient for contracting the disease. By taking the job, the healthcare provider assumed/accepted the risk of infection.
Contributory Negligence is defined as a lack of ordinary care on the part of the injured party, combined with lack of ordinary care by another resulting in an injury. In other words where a plaintiff fails to exercise due care for his/her own safety, he/she is said to have contributed to the injuries. For example, a patient who fails to comply with physician recommendations for treatment or medication contributes to the injuries that may result. In some states, if a plaintiff contributes to his/her own injuries, however so slight, recovery of damages is barred.
Comparative Negligence provides that the degree of negligence of each party to a lawsuit must be established and that each party be responsible for his/her proportional share of the damages. For example, where two physicians are held liable for a patients damages, they must pay damages in accordance with their degree of fault. Notice that comparative negligence as a legal theory is more equitable than contributory negligence.
Malpractice Insurance
Today, almost everyone has some form of insurance that protects them from various risks of loss. Insurance, generally, is a contract that creates legal obligations. The insurer assumes risks for the insured party in return for payment of insurance premiums.
The basic underlying concept of insurance is spreading of risk. By writing policies for a large number of people or entities, the insurance company spreads the risk. The hope is that more premium dollars come in than go out for claims.
Risk is defined as the possibility that loss will occur. The main purpose of insurance, then, is to protect against loss. There are three categories of risk. Property loss/damage, personal injury/loss of life, risk of incurring legal liability. The latter is what malpractice insurance is. Health care providers obtain malpractice insurance to cover the risk that they may become legally liable for injuries suffered by another and have to pay monetary damages.
There are two basic types of malpractice policies:
Occurrence policies cover all incidents that arise during a policy period, regardless of when they are reported
Claims-made policies cover those claims made or reported during the policy period regardless of when they occurred
Insurance policies provide legal representation, and monetary coverage in case a loss occurs. Malpractice policies cover injuries or loss resulting from negligent acts. This means that the insurance policy will not provide coverage for loss resulting from intentional torts.
The significance is that every lawsuit filed against a healthcare provider because of intentional acts, such as rape, will be worded to sound in negligence so that the insurance coverage kicks in.
Module 3 Background
Tort Law
Required Readings
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