Advanced Practice Legal Considerations - Case Study Example

?ADVANCED PRACTICE Advanced Practice Legal Considerations Word Count 750 (7 pages) I. Introduction The judge in this case followed a fifth cause of action: negligent supervision and/or hiring and/or training. Since negligence deals with torts, we will examine medical torts in-depth here. Torts is a category of law that deals with personal injury. There are several types of personal injuries, to be sure—both intentional and unintentional, dealing with the issues of negligence and so forth. Basically, there are six types of torts—a few of which will be discussed here, and how those specific laws apply to Luann’s situation. There are intentional torts against persons, which deal with very specific charges that are incurred when one person injures another. Other categories of torts similarly deal with different types of wrongs committed, including: unintentional torts (negligence); and special negligence doctrines, including negligent infliction of emotional distress among others. Finally, defenses against negligence—as well as strict liability—will be examined, especially as it regards whether confidentiality issues were breached when the lab tech used personal information to make a decision about informing someone about someone else’s health, a one person who was not supposed to be privy to that information as that person was a third party. Herein are analyses of some aspects of torts, some of which may not be torts which necessarily align with this particular case, but which should be mentioned nonetheless. II. Misappropriation of the Right to Publicity According to Frackman et. al. (1996), “The right of publicity makes it unlawful to use another's identity for commercial advantage without permission. In recent years, that right has grown to encompass the potential misappropriation of voice, performance style, former names, and maybe, as contended in a case recently filed in Indiana regarding the race horse Cigar, . . . the image of an animal” (pp. 1). Misappropriation of the right to publicity basically means that someone’s privacy is being invaded in some way, shape, or form. Others’ privacy should be guarded well. III. Invasion of the Right to Privacy An invasion of the right to privacy is a direct intrusion on someone’s personal space. This “invasion of privacy,” so to speak, is not legislated per se. However, confidentiality agreements—such as the one the lab tech Luann signed—should be honored, and are honored, in a court of law. However, various celebrities and other personalities of note have invoked the invasion of the right to privacy in court cases. Using the name or likeness of a person can also get one into trouble in regard to the invasion of privacy. This is a bit like intellectual property law, where someone’s image is protected. Interference with the First Amendment can be a cause of torts. In the case of invasion of the right of privacy, this applies occasionally. IV. Unintentional Torts (Negligence) a) Duty of Care Duty of care basically means that a reasonable person has a duty to another person to make sure that he or she does not have any kind of trouble. This means that anyone should act reasonably according with to the situation at hand. For example, one example of duty of care is that, if an oncoming car is about to hit a pedestrian, and a passersby had the chance to save the person, this is called the person’s duty of care. Any reasonably-acting person would have tried to get the pedestrian out of the way of the oncoming car. In Luann’s case, she had the duty of care to protect the confidentiality of her client’s name and condition. She did not abide by the confidentiality agreement set forth when hired, and this is what got her into a lot of trouble with the courts. V. Breach of Duty Breach of duty occurs when a person has a duty to perform for a person, but he or she does not do it. For instance, in the previous example with the car about to hit the pedestrian, the onlooker would have performed a breach of duty by not rescuing the pedestrian who was going to be hit by the car. In Luann’s case, there was a breach of duty because she allowed personal information to be leaked to the inappropriate individuals. Her job as a lab tech was to only disseminate medication—not tell other people a patient’s personal business, even if there indeed were some family relation. VI. Special Negligence Doctrines a) Professional Malpractice “Professional [malpractice or professional] negligence refers to the negligent acts of a medical provider.  This can include doctors, nurses, caregivers, dentists and other health related professionals.  A claim for professional malpractice basically asserts that the professional involved failed to act like other professionals would have acted in the same of similar circumstances” (“What is Professional Malpractice?” 2011, pp. 1). For example, if one went to a doctor to have a liver transplant and instead got a kidney transplant, this would be one example of professional malpractice, a form of negligence. One negligence case that is probably going to get much press in the news is the death of Michael Jackson. Supposedly, Jackson’s doctor, Conrad Murray, will probably be charged with professional malpractice. That is not the only charge that will most likely be brought against him, but basically Murray was negligent in administering a certain medication to Michael Jackson. The medication was called Propofol, and it is actually an anesthetic used only in hospitals, for the most part. However, apparently Jackson had been using Propofol for quite some time for “sleeping” purposes. Technically, the brain (nor the body) is getting any sleep when being anesthetized. Apparently, however, this gave Jackson the illusion of having appeared rested. In this type of semi-vegetative state, however, one is not really receiving any relief in terms of a sleep deficit. Propofol mainly knocks someone unconscious. Jackson mistakenly thought that this meant he was asleep every time he took Propofol. “The very potent drug, also known as Diprivan, is administered intravenously as a general anesthetic used to sedate patients for surgery and is only available to medical personnel. This drug is only used as an anesthetic agent for surgery. It works very quickly, usually in 30 seconds, to knock out a patient” (“Michael Jackson’s Death Could Be Related to Medical Malpractice,” 2011, pp. 1). Dr. Conrad Murray apparently had other malpractice suits pending against him and was in quite a bit of financial trouble. He had been hoping to use the money paid to him by Michael Jackson in order to pay off outstanding debts. Currently, Murray has now formally been convicted of involuntary manslaughter (as was originally thought), but is due to be sentenced sometime soon in a court of law. Although Luann was not involved in medical malpractice per se, her patient and/or the patient’s family members could sue Luann for some malpractice related to the dispensation of medication and/or discussing confidential medical information with parties not privy to receive said information. b) Negligent Infliction of Emotional Distress Negligent infliction of emotional distress means that a client has been caused emotional distress by someone. Either this distress was intentional or unintentional, but nevertheless, a client can sue for damages based on emotional distress. Take, for example, a woman who has her health insurance revoked. Her husband might be able to sue the insurance company if he can reasonably prove that the revocation of his wife’s health insurance caused him emotional distress. In Luann’s case, this could mean that her patient or her family member could have been caused emotional stress due to the fact that this information had been leaked. VII. Defenses Against Negligence a) Superseding, or Intervening, Event A superceding cause or event is “the same as an ‘intervening cause,’ or ‘supervening cause,’ which is an event which occurs after the initial act leading to an accident, and substantially causes the accident. The superseding cause relieves from responsibility (liability) the party whose act started the series of events which led to the accident, since the original negligence is no longer the proximate cause” (“Superceding Cause,” 2011, pp. 1). The intervening cause is crucial because this could determine who was liable—whether it was Luann or the person who solicited information from her. b) Assumption of the Risk “[One] defense that traditionally has barred recovery for a plaintiff applies when a plaintiff has assumed the risk involved in an obviously dangerous activity but proceeded to engage in the activity anyway. In order for this doctrine to apply, the plaintiff must have actual, subjective knowledge of the risk involved in the activity” (“Defenses to Negligence Claims,” 2011, pp. 1). An assumption of risk basically means, in layman’s terms, that one should know the risk involved in any activity. For example, if someone is going bungee jumping, one assumes that there are inherent risks associated with that activity. For example, some of the things that could happen are: the rope could break, one could hit one’s head on an object, or the spine might be affected if the rope recoils too fast and one’s body is pulled like a rag doll back up after bouncing down. Consequentially, if someone within the patient’s family or the patient herself had cause to believe that this person (the patient’s estranged father) would be seeking medical information about her, that the patient or the patient’s family could indeed be liable for assumption of risk. VIII. Strict Liability Strict liability means that a person or organization is liable for his or her actions or inactions regardless of fault, i.e., a crime that does not require mens rea (intent). Therefore, strict liability is enforced regardless of intent. This means, that, for instance, someone is liable for his or her actions or inactions whether or not there is culpability involved. In Luann’s case, she was strictly liable for any confidentiality agreement which was breached. Since she breached the agreement, she would therefore be completely liable for the incident. IX. Conclusion The matter of torts is quite complicated. There are various kinds of torts. Examples of each kind of tort, as well as some defenses against torts, and strict liability, have been examined here. Culpability in torts is not always easily determined. However, with the help of a decent personal injury lawyer, one can find justice for oneself in the court system. Personal injury is a serious matter, and should be prosecuted accordingly. Luann broke the law and will face the proper fines and penalties in court for torts, according to the judge—who would like to find that she was liable for negligence. REFERENCES Defenses to negligence claims. (2011). Available: http://injury.findlaw.com/personal-injury/personal-injury-law/negligence/defenses-to-negligence- claims.html. Frackman, R.J., & Bloomfield, T.C. (1996). The right of publicity: going to the dogs? Available: http://www.gseis.ucla.edu/iclp/rftb.html. Michael Jackson’s death could be related to medical malpractice. (2011). Available: http://www.hsinjurylaw.com/library/medical-malpractice-could-be-cause-of-michael-jacksons- death.cfm. Superceding cause. (2011). Available: http://legal-dictionary.thefreedictionary.com/superseding+cause. What is professional malpractice? (2011). Available: http://resources.lawinfo.com/en/Legal-FAQs/Medical-Negligence/Federal/what-is-professional- malpractice-.html. Read More