Healthcare Service Administration HSA 515

Law of Healthcare Administration

“Law and Health Care”

Assignment #1

Strayer University

Write a 4-6 page paper based on your answers to the following questions. Utilize the Showalter textbook and at least two (2) other resources to support your answers. Identify and explain the four elements of proof necessary for a plaintiff to prove a negligence case.

 Explain how the standard of care can be proven.

Explain the principle of “vicarious liability” (respondeat superior).

Explain why a corporation is considered an “artificial person” under the law.

4.Explain the functions and responsibilities of the governing board of a healthcare corporation.

ANSWER:

Explain how the standard of care can be proven.

In the standard of care, there is a certain and prudent kind of way that all persons involved should behave in a given circumstances. The duty of due care requires them to be prudent and act with care in order the patients to be safe. The definition given by a legal dictionary (Hill & Hill; 1981-2005) was that: “standard of care is the watchfulness, attention, caution and prudence that a reasonable person in the circumstances would exercise. If a person’s actions do not meet this standard of care, then his/her acts fail to meet the duty of care which all people (supposedly) have toward others. Failure to meet the standard is negligence, and any damages resulting therefrom may be claimed in a lawsuit by the injured party. The problem is that the “standard” is often a subjective issue upon which reasonable people can differ”. As the definition explained above whenever a person fails to behave as a reasonable and prudent person, he automatically commits a breach of duty. But in the other hand, a standard of care can be proven when there is duty of care which requires all persons to conduct themselves as a reasonably prudent person would do in similar circumstances (Showalter, 2008; PP. 47-48). Many ways can be used to found how a standard of care can be proven.

Indeed, the reasonable person also called the Helling standard is a legal fiction of the common law representing a fix norm against which any person’s conduct can be measured. It is employed to figure out if a breach of the standard of care occurred. Moreover, physicians are usually judged by how other physicians would have behaved under similar circumstances (Showalter, 2008; PP. 48-49). In the ‘Letric Law Library (1995-2011) also explained: “In reality, unless there is a factual question about what the defendant did, the proof of the standard of care also proves the defendant’s breach. For example, assume that the defendant admits that she did not counsel the patient about prenatal testing. If the patient can establish that the standard of care was to offer this testing, the defendant breached the standard. If, however, the physician claims to have done the counseling, the patient will have to prove both that counseling was the standard of care and that the physician did not do the counseling”. Therefore, with every evidence provided, a breach of the duty of care can be proven.

In the majority of the cases of medical misdeed (malpractices), the level of the care and its infringement are establish by the testimony of the expert witnesses to prove if there were standard of care. There are situations in which the plaintiff can be able to establish without experts to what extend the standard of the care and duty of care has been committed (‘Letric Law Library, 1995-2011). For the expert witness to show the appropriate standard of care and that there was not a breach, his testimony needs to have some qualifications. First, the witness must be familiar with the jurisdiction’s standard of care; therefore, he must practice in the same locality as the physician or at least be familiar with their jurisdiction. To finish, the expert must be professionally qualified which is for him to know the basics requiring knowledge of the standard of practice involved in the patient’s care (Showalter, 2008, PP. 54-55). Some other evidence of standard of care can be proven when the doctor can introduce all the required medical documents to show that he acted with extreme care while taking care of the patient. Common-knowledge, Res Ipsa Loquitur (When the thing speaks for itself) and Strict Liability are other procedures that can be used to prove standard of care (Showalter, 20008; PP. 55-57).

Explain the principle of “vicarious liability” (respondeat superior).

Vicarious liability is when you are being liable for other’s acts. The definition given by Vaidya, P (2011) is that: “Vicarious liability is a form of strict, secondary liability that arises under the common law doctrine of agency – respondeat superior – the responsibility of the superior for the acts of their subordinate, or, in a broader sense, the responsibility of any third party that had the “right, ability or duty to control” the activities of a violator. The liability is placed, not on the tortfeasor, but rather on someone who is supposed to have control over the tortfeasor.” Besides, a healthcare provider can be held responsible for the negligence of others, even though he was not the one who were negligent. The most common form of vicarious liability is the liability arising out of a “Master – Servant” (Employer – Employee) relationship. Therefore, respondeat superior means that it is the superior who will respond for the negligence of his agents or employees. Furthermore, a tort committed under the vicarious liability does not depend on whether the negligent person was employed by the superior or not; for example: the physician can be held liable from his nurse’s negligence if he is the one who ordered her. In addition, a physician in a legal partnership with other physicians is one being liable for his partners’ torts, as long as they acted within the area of the partnership (Showalter, 2008). In that case, every partner is an agent of the other partners that is why they are liable for the tort. Showalter (2008, PP. 68) mentioned: “The corporation would then have to respond in damages, although physicians who personally committed such torts would of course still be individually liable for their own wrongful acts”.

Explain why a corporation is considered an “artificial person” under the law.

Showalter (2008, PP. 90) stated that: “a corporation is an artificial being, invisible, intangible and existing only in contemplation of the law. Being the mere creature of the law, it possesses those properties which charter confer upon it, either expressly or incidental to its very existence”. What he meant to say by his definition is that corporation is considered an “artificial person” because he is behaving like a separate entity. Being an “entity” defines that the corporation is not tied to any one person or group of people because he can stand on his own (like a partnership or a sole proprietorship) (Small Business Ideas, 2011). Corporations may have many advantages such as limited liability for example: if you slip and fall in a store such as Giant, you can sue Giant which a corporation even if it looks strange to sue a corporation not a person. Then continuity., since the corporation is a separate entity; therefore, it can survive its founders, its shareholders, and its board of directors. Moreover, it creates continuity for investors and employees and allows the business to keep going, without being interrupted and without fear of killing the business. Finally, Limited rights because as a “person”, several rights that we would normally be considered to be an individual right would been given to corporations (Hossain Z, 2010). All those advantages are also why they are considered as separate entities or as an “artificial person” under the law. Hossain, Z (2010) also explained: “For example, corporations can own property and other assets, can buy, sell, or lease property, and have very broad commercial rights so that the corporation can conduct business independent of an individual person and maintain continuity”.

Explain the functions and responsibilities of the governing board of a healthcare corporation.

Governing boards are under a meticulous examination than ever before and are held on higher levels of the responsibility. Much of this was led by many well-publicized failures corporation which reduced the public’s confidence. Thus, the relation of council assembly effectiveness to hospital performance is a critical matter for many leaders in the healthcare (McDonagh, 2006). Indeed, the governing board of healthcare corporation has four major functions and responsibilities which include: developing policy and strategy, appointing senior administration and medical staff members, delineating clinical privileges, and oversee the professional performance of both lay administrators and medical staff. In order for those functions to be realizable, the board must ensure the proper organization of its own committee structure, management committees, and medical staff (Showalter, 2008; PP. 97).

In addition to the executive committee, other standing committee include: finance (having the authority of managing and investing hospital funds, and for the overall supervision of fiscal policies), buildings and grounds (overseeing the physical plant), personnel (developing for the employee policies regarding salaries, wages and so forth,… ), public relations or corporate communications (overseeing the messages being distributed to stakeholders and the general public), education (recommending training programs for employees), corporate compliance (ensuring that measures are in place to enable compliance with legal standards), and medical staff relations (promoting mutual understanding between the lay board and the professional staff). Every committee has the duty to offer recommendations and giving advices to the governing board, because the ultimate responsibility for all decisions mostly rely on the board (Showalter, 2008; PP. 98).

REFERENCES

Hill, G & Hill, K. (1981 -2005). Definitions: Standard Of Care. The Free Dictionary Definitions. Retrieved from HYPERLINK “http://legal-dictionary.thefreedictionary.com/standard+of+care” http://legal-dictionary.thefreedictionary.com/standard+of+care

Hossain, Z (2010). Introduction of Illegal Street Race. The Lawyers & Jurists Article. Retrieved from HYPERLINK “http://resources.lawyersnjurists.com/articles-and-assignment/introduction-of-illegal-street-race/” http://resources.lawyersnjurists.com/articles-and-assignment/introduction-of-illegal-street-race/

‘Letric Law Library. (1995-2011). Standard Of Care. The ‘Letric Law Library Article. Retrieved from HYPERLINK “http://www.lectlaw.com/files/exp24.htm” http://www.lectlaw.com/files/exp24.htm

McDonagh, K. (2006). The Effectiveness of Hospital Governing Boards. Journal of Healthcare Management Article. Retrieved from http://www.allbusiness.com/corporate-governance/4109245-1.html

Showalter, J. (2008). The Law of Healthcare Administration. Health Administration Press. 5th. Ed., (PP.47-49, 57-58, 68, 90, 97-98).

Small Business Ideas. (2011). What You Should Know About Legal Forms of Business. Small Business Legal Structures Article. Retrieved from http://www.small-biz-ideas.com/small-business-legal-structures.html#top

Vaidya, P. (2011). Vicarious Liability. Vicarious Liability of State in Sovereign Functions Article. Retrieved from http://legalservicesindia.com/article/article/vicarious-liability-of-state-in-sovereign-functions-580-1.html