Notes on Advance Directives & Medical Malpractice

An advance directive gives instructions to a doctor as to what kind of care a

patient would like to have should he/she becomes unable to make medical
decisions.
- Written instruction recognized under state law relating to the provision of
health care when the individual is incapacitated.

Living Will - a written, legal document that describes the kind of medical
treatments or life-sustaining treatments a person would want if he were seriously or
terminally ill.
• A living will doesn't appoint someone to make decisions for the patient

Durable power of attorney for health care (DPAHC)- A patient designates an

agent to make health-care decisions for them if they become mentally
incapacitated.
• It becomes active any time the patient is unconscious or unable to make
medical decisions.
• The agent is not empowered to make decisions on behalf of the patient
unless the patient is deemed, usually by his or her physicians, to be
incapable of informed consent or refusal
• Physicians are legally bound to respect an agent's wishes.
• The agent must act consistently with the terms of the DPAHC, as well as with
the patient's known wishes.
• The agent must act in the patient's best interests.

Do not resuscitate (DNR) order - is a request not to have cardiopulmonary

resuscitation (CPR) if the patient’s heart stops or if he stops breathing.

NEGLIGENCE & MEDICAL MALPRACTICE

Tort, wrongful act that causes injury to a person or property and for which the law
allows a claim by the injured party to recover damages (money). A lawsuit based on
a tort is a private claim under civil law, the law that governs the relationships
between individuals—for example marriage, contracts, or injuries. The civil law
concerning torts attempts to remedy injuries suffered by individuals or corporations
by forcing the party who caused the harm to compensate the victim. Society
requires that individuals act in certain ways and requires them to provide
compensation if they injure someone because they failed to act in the required
manner

Negligence refers to the failure of a person to exercise sufficient care in his or her
conduct. When a person’s conduct falls below the reasonable expectation of society
and causes foreseeable harm to another, the person has acted negligently. Society’s
expectation—known in torts based on negligence as the legal duty of care—is that
an individual act as a reasonably prudent and careful person would act in similar
circumstances. A person can act negligently by doing something that a reasonable
person would not do or by failing to do something that a reasonable person would
do. The law does not require that the person has an intent to cause harm. Simply
put, negligence is the failure to observe that degree of care, precaution and
vigilance which the circumstances justly demand resulting in injury to another
person.

The existence of negligence is determined by the behavior of the person in the

situation.

Negligence law offers plaintiffs the legal framework upon which to build their civil
suit. A plaintiff in a medical malpractice action must satisfy four elements-duty,
breach, causation and damage- in order to prevail. In a negligence case, the
wrongdoer's actions are compared to what would be expected of a reasonable and
prudent person in the same or similar circumstance.

Malpractice is a special type of tort. A tort is a civil wrong that permits an injured
party to sue for compensation for damages caused by the harmful conduct of
another person. One common type of tort arises when a driver fails to exercise due
care (ordinary care) while operating an automobile and causes an accident that
results in injury to others. Malpractice and other torts have these three features in
common: they involve a person who has a duty of care toward others, a failure to
exercise due care, and an injury or other monetary damages caused by that failure.

Because malpractice cases involve members of a profession, many of the issues

that arise are more complex than the issues

Medical malpractice is the most common type of malpractice lawsuit. It typically

involves the negligence of a physician while diagnosing or treating a patient. In the
past, courts decided whether a physician’s conduct was negligent by comparing
that conduct with the practices in the locality where the doctor worked or with the
practices of his or her field of medicine. These comparisons made it difficult for
injured patients to win malpractice lawsuits. Other doctors who could describe the
practices in the locality were often reluctant to testify against their colleagues. More
recently, courts have applied a national standard for professional conduct when
determining whether malpractice occurred.

A small proportion of medical malpractice cases result from the intentional

misconduct of the physician, such as improperly touching a patient who is
unconscious. However, plaintiffs who are harmed in such a manner typically charge
that the physician committed battery, an intentional tort, rather than alleging
malpractice. A physician may also commit malpractice by doing something without
obtaining the patient’s informed consent. For example, a doctor may commit
malpractice by giving a patient an experimental drug without first informing the
patient about potential risks or side effects, and then obtaining the patient’s
consent to use the drug.
Traditionally, redress for patients harmed during the course of medical therapy has
been sought in civil court. “Civil” in the legal sense refers to private rights and
remedies that are sought by action or suit. 2 Civil cases, therefore, involve
individuals and organizations seeking to resolve legal disputes. In a civil case the
victim brings the suit. Persons found liable in a civil case may only have to give up
property or pay money.