solved View the assigned Healthcare Law LearnScape interactive episode in the

View the assigned Healthcare Law LearnScape interactive episode in the Jones & Bartlett website (DB2 LearnScape Case Study). You will be presented with a negligence case stemming from an incident in the hospital. You must interview staff members and work with the General Counsel to determine whether there is liability for negligence and medical malpractice.
Based on the information you gathered from the LearnScape video interviews, on your research, and on a biblical worldview, analyze this incident and write your recommendation to the Chief Counsel regarding negligence/malpractice liability. Consider liability for both the hospital and for employees. Directly address the four elements required to prove negligence:

Duty to care
Breach of duty
Injury
Causation (specifically foreseeability)

Submit your analysis as the Discussion thread. Title your thread “Liable” or “Not Liable” to reflect your conclusion.

We’re here this afternoon with brand and asked to bind. Who’s a personal injury attorney? He is an attorney with over be a partner with over b. Hawkins and right. And we’re going to talk this afternoon about malpractice and an attorney’s perspective on malpractice. So tell us if you want a little bit about your practice, what kinds of cases you deal with on a routine basis, particularly as they relate to healthcare professions and malpractice. Sure. I am. When I tell people I do I say I do civil litigation, which means a lot of different things to a lot of different people and to people who aren’t in the legal field. It doesn’t really mean anything. But I spend most of my time doing personal injury cases, which include things like auto accident cases, slip and fall cases, medical malpractice cases. But I’ll also do some other things. I do contract disputes, business partnership disputes, things like that as well, but I spend the majority of my time doing personal injury cases. And actually those business cases, the contracts and the property would also relate to a lot of our professionals because they’re dealing with contracts, they’re dealing with property. But I suspect a lot of them are mostly concerned when they deal with lawyers with the malpractice issues. That’s right. So what kind of cases do you typically see on the malpractice sign? There could be several things. Obviously, we’ve all heard horror stories about sponges loved inside of a patient after a surgery that has happened. It’s happened here in Lynchburg, happens in other places, but what we see most of the time is failure to diagnose or misdiagnosis or even failure to communicate a diagnosis. Probably the majority of malpractice cases that I see has something to do with a misdiagnosis or the failure to diagnose or to run the appropriate test to to make that diagnosis, in this case is a very difficult, but those would probably be the most frequent medical malpractice cases that I see. So when we hear about defensive medicine then running all kinds of additional tests, is that in response to these failure to diagnose cases, I would imagine, although I don’t think the defensive medicine is as prevalent as one would think. I think doctors ought to run the appropriate test. And there are all kinds of training in medical schools that will teach you how to know what test to take. But if you have an 80 year-old person with osteoporosis come in and they are complaining of back pain. You probably ought to x-ray the thoracic spine and the cervical spine and the lumbar spine. Just to make sure that you can identify a fracture and you don’t send them home with a fracture and T spine when they’re complaining of mid back pain and you think that they’re pointing at the lumbar spine. Here, there are things like that that a doctor really should do. That’s not, I wouldn’t classify as defensive medicine. I would classify it as following the standard of care. Talk a little bit, if you would, about that standard of care. Are professionals know a little bit about negligence and that there is a duty and standard of care. How does that play into the lawsuits? It’s essential before in Virginia, before you can file and start a lawsuit, you have to have an opinion from a doctor that says that the offending doctor violated the standard of care and that violation of the standard of care lead to the patient’s damages. That is so important in a medical malpractice case, a case that if you file without it, you’re going to face sanctions maybe from the bar, but certainly from the court. When the doctors bring that to light and they ask for an in camera review of your certification of marriage. And if you don’t have that certification of merit, you’re going to get sanctioned by the court. Now that would be true for cases against doctors. Is that also true for hospitals and nurses and other professionals? Doctors and hospitals. If if the doctor is working in the hospital or working for the hospital, then the doctor and the hospital would both be jointly defendant in the lawsuit. So yes, it is. It is very true any medical malpractice case which deals with the treatment of individual in the healthcare realm, is going to be classified as a medical malpractice case. And if the hospital employees, the doctor who committed a malpractice in the hospital would be a defendant in a certificate of merit is required before you proceed with the litigation. And how many of these cases actually go to trial. We see we see movies and in movies and TV show everything as the trial. But I suspect med mouse, like everything else, very few actually end up in a trial. That is true. Before plaintiff’s lawyer will take a medical malpractice case, there has to be serious injuries, injuries with special damages, medical expenses, lost wages, or something exceeding $50 thousand. In my experience, if the case does not have enough special damages, it’s just not worth it to take that particular case to a jury or even to file suit, because the doctors and the hospitals do not just turn around and settle these cases. If you’re going to proceed in a medical malpractice cases case, you have to be in for the long haul. These cases could take anywhere from two to five years to complete. And you’re right, most of them don’t end up in a trial, but they won’t settle right away. Most of them are going to end up settling at the very last minute. Abby, through a mediation process or the settlement negotiations between the attorneys. But they do not settle until all the facts are properly flushed out and everyone knows each side’s position and what the the medical testimony is going to be. And so the discovery in these cases then it sounds like takes can take years. It does take years. And it cost a whole lot of money. I’ve seen numbers anywhere from 50 to a $100 thousand just to prepare a medical malpractice case. That doesn’t necessarily include trying a medical malpractice case. Just the certificate of merit that you get in very beginning of the trial could cost you five to $10 thousand right off the top. Then you gotta prepare your experts for depositions, pay for them to come to trial if you need them actually physically in trial, and pay for deposition transcripts which are going to be voluminous and those types of cases. A lot of medical records, a lot of time spent by experts off at a chord or off a deposition, preparing and reviewing to make sure that they have fully reviewed every single document that’s involved in the case. And there could be thousands of pages of documents involved in these cases. Now, you mentioned mediation and settlement negotiation. What kinds of alternative dispute resolution do you get involved in and how would that work in a case like this? Well, if you get a medical malpractice case in, you get the information soon or not. There’s a two-year statute limitations in medical malpractice cases in Virginia. And that may be different in other states. But if you get the case at about a year out and you’ve got an E or to work with, there’s a potential that you’ll send a settlement demand to the insurance company or to the hospital or to the doctor who committed the malpractice. You can engage in settlement negotiations before you ever file suit. There are other processes like arbitration, mandatory arbitration or voluntary arbitration or mediation that you can use in Virginia. We also have medical review panels that can come into play after a suit is filed. Either party can request a medical review panel and you would essentially present your case to a tribunal of people who specialize in the type of medicine that the cases about that way you can get a more specialized opinion as to whether or not there is malpractice. So that would be a panel of of medical professionals or layers or combination a combination of both and is generally chaired by a judge who can direct the proceeding. There are some very specific things that you need to do. You can still get some discovery, but the timeline is significantly abbreviated, so you can spend about four months and a medical review panel and get a result. That’s not enough. It’s not like arbitration. You don’t get a get an award, but you get a determination on liability. So you can and is that binding on the parties then if they go through this kind of a trivial don’t know, but it can be used as evidence in the trial. Lca. So things that are presented essentially as evidence at this tribunal would then be admissible, right? In, in, in a regular trial rank. And there are some hospitals and larger medical companies now, particularly nursing homes, that are putting mandatory arbitration clauses in their intake contracts, which essentially require right off the bat that you go to arbitration instead of filing in court proceeding with litigation in the normal way. In Virginia, there is an exception to those agreements as arbitration binding arbitration agreements for medical malpractice type cases. And it gives the patient a 60 day window within which to opt out of that mandatory arbitration clause. But it has to be done within 60 days following the termination of the doctor-patient relationship. So you may not know the patient may not know that there was malpractice or that the damages that he’s currently going through, the new treatments that he’s going through was caused by malpractice. Malpractice at this point. So a lot of times you don’t see people opting out because didn’t know that they were going to need to bring a medical malpractice case? Sure. What types of if you see any DC, any church based or biblical based dispute resolution processes, have you been able to be involved in? I have recommended at one time between two parties that I knew were Christians. It did not go anywhere. The other sad thing just shocked it off and didn’t pay attention to that at all. But you don’t see it in medical malpractice and personal injury cases. And it’s interesting question to think about because they’re scriptural references to resolving disputes outside of court, if you can. And I heard an interesting debate between david gibbs and Mark hicks on the radio one time where david gibbs was very anti litigation markets was while the courts are there, it’s part of our government instituted by God to be used as a means to resolve disputes. So they’re debating its litigation good or is that litigation bad? Is it biblical or is it not? And David gives is on, it’s not side. But even he made an exception in the context of medical malpractice and personal injury because you’re really dealing with insurance companies who are calling the shots most of the time and you’re not dealing with the individual on the other side of the table. You’re dealing with the company that has agreed to indemnify him for his damages that he caused. And do you find that having the insurance companies involved like that does limit some of your options for apology or discussion or admission of some sort of liability by the time you get to the litigation stage, yes. And there are there’s a lot of Information about there out there about apologies and whether you should give apologies vs. Not give apologies. There have been studies as to the effect on malpractice cases about giving apologies. And I think the consensus is that doctors who actually give apologies, alright. Spend less time and less money litigating medical malpractice cases? Yes. Be careful when you do that, though, because some states allow that to come into evidence at the trial as an admission of guilt share some states do not. Virginia is one of those states where if you give an apology or statement of regret or anything like that, it’s not it cannot come into evidence as into evidence at trial as an admission of guilt. But there is a very fine line because if you admit in your apology that you committed malpractice than that admission will come in, but the apology, it will not come in. Interesting as evidence. It would seem like that that sort of apology, expression of regret would would foster the, the reconciliation or at least some sort of a relationship between the patient and lead and the professional. And it gives sort of closure to the patient that they’re often seeking in litigation. But if they have an explanation from the doctor and an apology, then oftentimes they have the closure that they need to just let it go. There are two camps. Some doctors and hospitals will fall into. You got deny and defend and they just won’t say anything. They won’t even really tell you what happened. And then you’ve got the apologize and disclose camp. And I’ve seen the studies that say that medical malpractice claims are settled for as much as 47% less in the apologize and disclose professionals as opposed to the dynein defend because there’s not that closure and patients like to see if they feel like they’ve been wrong, they want to obtain that closure and they want to vindicate the wrong that’s been done to them. And rightfully so. Very good. We have art. Our audience is all healthcare professionals from a, from a variety of professionals. Any last words of wisdom or advice? Well, sure. I guess I would say people are people and I understand most of the people watching this will probably be Christians. Second greatest commandment is to love thy neighbor. And that is not any less true. And your profession as it is with the person who lives across the street from you. So when when someone comes up to you needing healthcare services or any type of services, follow the second commandment, love thy neighbor as yourself. And I think everything else will take care of itself from that point. Excellent. Thank you so much for your time and thank you. 

reply one
In the case study that we have been assigned for this week’s discussion board, there is a patient that had been admitted to the hospital for a procedure and during admittance, the patient had been identified as Mrs. Smith. Mrs. Smith has made the allegation that there was negligence that was done after the surgery was completed during the examination in the post-operation. From the account of Mrs. Smith and Mr. Smith, she was in the waiting area for the post-op when the Chief of Surgery, Dr. George Paltrow came into the recovery area to perform his evaluation of all of the patients. During the examination, there was a note that had been made that Dr. Paltrow did not change his gloves after he had completed the evaluation of each one of his patients nor did he wash his hands as required. Following the evaluation, Mrs. Smith had contracted a staph infection that caused her more illness and had prolonged her stay within the hospital to thirty days. There have been a number of witnesses who have been identified and have been interviewed. In the interviews, the determination was made that all of the parties involved had been members of the hospital staff and not private contractors which brings the case in a whole other direction.
In the case, the problem of duty of care had been called into question since the idea of duty means the establishment of a legal obligation unto which the safety and security of another is imposed. The duty of care became in effect when the patient who was Mrs. Smith was in their care and had the supervision of Dr. Paltrow including the assigned nurse during the evaluation in post-surgery. Pozgar (2019) states that an organization owes its patients a duty of care, and the duty includes the obligation to protect them from negligence and fraudulent acts of those physicians with a propensity to commit malpractice (p. 172). The physicians in a hospital has to be able to provide the highest and considerable amount of care for any patient that is under their care including seeking the expertise of medical professionals. Morris et al (2019) stated, “All healthcare practitioners know that they owe their patients a duty of care (p. 647). The duty of care had been defined already since the patient had been in the care of Dr. Paltrow and Nurse Brainard while post-op care was being provided. This is a crucial component that must be determined if the patient would even want to begin to proceed with the filing and possibly winning a lawsuit for negligence.
The first of the determination factors in the case study would be the idea of breaching of duty. Pozgar (2019) defines breach of duty as the failure to conform to or the departure from a
required duty of care owed to a person (p. 50). When Dr. Paltrow was making his assessment of the patients and made the decision to not change his glove nor wash his hands as mandated, he violated the standard of care that had been owed to his patients that deserved a quality level of care. To be able to properly determine if a breach of duty occurred, we must be able to understand the policies and procedures that the hospital has including what a reasonable care provider is expected to do. According to the case study, if there is a policy that exists for the handling of gloves, the way to change them and disposal once usage is done then that should be followed. Whilst interviewing Nurse Brainard, she mentioned the fact that many of the staff within that department did not practice the proper standards of glove changing and handwashing. The nurse also indicated that she had expected for an incident such as this to occur due to the behaviors that she had seen from the staff members. Morris et al (2019) stated, “The issue of whether a healthcare practitioner breached their duty of care to their patient is central to clinical negligence claims (p. 647). Once review of the presented facts is complete, there is a breach of duty that has obviously occurred since Dr. Paltrow did not follow the policy or procedures and did not practice safety protocols for the patients nor standards of care. Another point to remember is that the staff members were also employees of the hospital who did not take the time to inform either Dr. Paltrow nor the administration of what Dr. Paltrow was doing and allowed for a delay in the treatment and care of Mrs. Smith.
The second of the determination factors in the case study would be the injuries that had been caused or received to the patient due to the negligence. The very essence if civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury (Pozgar, 2019, p. 20). In many occurrences either medical or not, an injury that is one that is caused from pain, suffering, loss of income, harm physically or even to one’s reputation. Mrs. Smith was injured due to the physician’s breach of duty and duty of care being violated which resulted in a staph infection that had not been there prior to admittance into the hospital’s care. The injury had been reaffirmed when the pulmonologist, Dr. Holly Brigham and the infection disease team made the determination that Mrs. Smith received a staph infection that had traveled from her lungs which can cause an autoimmune disease. The staph infection is one that can affect her life and cause her death if untreated or treated incorrectly or even not found in time. Since the nursing staff did not take the time to advise any personnel of the actions of Dr. Paltrow, the injuries could have been left for a period of time can cause a delay in the possible treatments and the overall outcome. The malpractice frameworks are intended to provide compensation and justice for negligently injured patients (Krauss, n.d., p. 1). In the end, the actions had occurred after the surgery was done and the patient had suffered injuries due to the negligence of the hospital and this gives good credence to the lawsuit of Mrs. Smith to the staff as well as the hospital as a whole.
The element of causation requires that there be a reasonable, close, and casual connection
or relationship between the defendant’s negligent conduct and the resulting damages (Pozgar,
2019, p. 52). Mrs. Smith had not been the only patient to receive the staph infection as Nurse Brainard said, she said that all of the patients that was under the care of Dr. Paltrow had been infected and this is a result of negligence. If she were to be the only patient to have receive the infection, the case would have been more difficult to prove. Graham (2020) concludes that the search for casual connection between damage and negligent act or omission requires consideration of the events that have happened and what would have happened if there has been no negligent act or omission (p. 21). Nurse Brainard mentioned that all of the patients had acquired the same exact type of infect that Mrs. Smith did which can be determined that the doctor, the staff and the hospital had been responsible for the injury to Mrs. Smith. Due to the negligence of Dr. Paltrow of not following the proper protocol of changing his gloves between caring for his patients nor washing his hands, the patients under his care became seriously ill with an autoimmune disease. The most reasonable piece of information to note is that the other staff members such as the nurses had been completely aware of the negligence though did not take the time to notify the doctor due to either fear of reprisal or fear in general. The nurses did not take the time to even talk to an administrator and discuss the negligence that had occurred. The violations had been known while the steps had not been properly taken to ensure the safety, security and care of the patient which should have done to prevent any type of harm to the patient which violates the right of the patient to proper or quality care.
In the end, after the careful review of the case study and the listening of all of the interviews for all of the involved parties within the hospital workplace, there seems to be the possibility of danger where a lawsuit of malpractice being issued. Each one of the parties that was involved had been members of the staff which means that the hospital has liability for any kind of neglect, damages or injuries that had occurred with the patient when they were in their care. Since the individuals are not contractors privately, the hospital has to assume the responsibility for the negligence that occurred on their watch. The care of the patient that had been provided was negligent and this means that the physicians including the hospital that they are employed at as well as the other staff members are at risk of a possible malpractice lawsuit that is being filed by the patient due to the negligence all of the involved parties. According to King James Bible Online (2021), Ezra 4:22 states, “Take heed now that ye fail not to do this: why should damage grow to the hurt of the kings?” This bible verse is one that expresses that negligence can be translated to one who is a sloth, lazy, or careless. This is not the representation that God would want to have in the kingdom that he has since this is not productive and can cause harm. This can be harmful due to the carelessness and lack the patience to get things done correctly without any fault to anyone. The Chief of the hospital has to be able to have the comprehension that negligence has occurred in the incident where all parties including the hospital needs to be held accountable and liable for if the case move forward where the court needs to be ruled upo

Reply two
Setting: Hospital. Post-surgical ward. 4 patients to a room. It is stated that there is an infection control committee that does not enforce policies and procedures. The policies and procedures are known to be very vague and not well wrote. The upkeep of the hospital itself is also in need of some housekeeping attention. It needs to also be noted that the ceiling tiles have gotten wet and are starting to mold. The vents in the room also have black and green building on them as well. There is no signage posted on the walls or doors for the patients and visitors regarding hand washing. Nothing posted anywhere for staff about procedure guidelines or hand washing. There are not gloves in every room with proper disposal canisters.
Dr. George Paltrow is Chief of Surgery. He is an employee of the hospital and is not privately contracted. He is numerous years of experience under his belt. He has performed thousands of surgeries and countless procedures. He performed a surgery on Mrs. Smith. The surgery went well and he went to visit her on rounds the following day. During rounds, Dr. Paltrow himself, and his residents started their rounds in the surgery ward. This is a four bed-room of post-surgical patients. They started the rounds with an amputation that they had done on a leg that was gangrene. It was sent out to pathology and came back with staph detected as well. They looked at the incision after donning gloves, removed the dressing and placed a new one. Asked and answered questions and moved onto the next patient. They did this for all four patients that were inside of this room. Coming to Mrs. Smith as the fourth patient, with the same pair of gloves that were worn for the first patient and dressing change. Dr. Paltrow examined the site and reapplied a dressing to the area. There was a handwashing sink available at the bedside of Mrs. Smith, that was placed 3 feet away from her. Dr. Paltrow disposed of his gloves and washed his hands beside Mrs. Smith’s bed. Upon finishing rounds, Dr. Paltrow made it known that he was leaving town and would be on vacation. The next morning, Mrs. Smith developed a high grade fever, her husband was very worried about her and knew that something needed to be done. Nurses Jennifer Brainard and Kyle Jones were the only two nurses that were working the unit that day as others had called in or there were just no other staff scheduled. Neither Jennifer or Kyle called Dr. Paltrow to advise him that Mrs. Smith had developed a fever. The husband took it upon himself to call the CEO of the hospital and advise him of what was going on. The CEO then called Infectious Disease to get involved. Tests were ran, Mrs. Smith had a terrible staph infection in her lungs. Dr. Holly Bringham was the pulmonologist that was consulted on Mrs. Smith’s case. She came in and drained the pocket out of the left lung while Infectious disease started Mrs. Smith on strong iv antibiotics to get ahead of the infection. The admission to the hospital that was originally supposed to be 5 days, turned into a 30 day stay. Dr. Bringham stated that it was unknown if the pocket would fill up again or if the staph infection were the cause of Mrs. Smith’s now current illness and diagnosis’. A lawsuit was filed against the hospital and Dr. Paltrow.
An investigation was started and employees were interviewed about the happenings.
Jennifer Brainard RN: Dr. Paltrow did not change gloves between patients. He was observed doing dressing changes with the same gloves on as well. “People make mistakes.” Stated that Dr. Paltrow normally goes from the book and is very careful he was just preoccupied with his vacation plans. It was confirmed through her that all patients in that ward did in fact contract staph infections as well. She stated that they did not say anything to Dr. Paltrow at the time for fear of being fired or yelled at in front of patients. It was also stated that was the same reason that they did not call Dr. Paltrow on to inform him of the change in Mrs. Smith’s health status. Was Dr. Paltrow incompetent for not performing proper hand hygiene?
Chief of Surgery George Paltrow: Did not have much to say about Mrs. Smith’s case. “It was a while ago. I have seen a lot of patients since then.” The first interview did not go well as Dr. Paltrow was very short with his answers. He was interrupted with an “emergency” patient. The second interview when approached about infection control. Dr. Paltrow discussed lots of ideas about proper hand hygiene and cross contamination procedures. He was more open with these questions but again, when asked about Mrs. Smith, he had not definitive answers and stated the staph infection probably came from the moldy vents and ceiling tiles.
Dr. Holly Bringham Pulmonology: Everyone makes mistakes sometimes we are all human was her first response. However, she felt it was ridiculous that it would be thought that staph was airborne. The infection entered the blood stream and flowed throughout the blood contaminating the entire body and finally the lungs. “Most staph infections are spread by direct person-to-person contact, usually requiring some break in the skin or mucous membranes to allow transfer of the bacteria” (Haaber, 2017). She felt the reaction time by the nurses was very late but that the treatment after the doctors got consulted went very well and the antibiotics got started quickly.
Duty to care: “In tort law, a duty of care is a legal obligation which is imposed on an individual, requiring adherence to a standard of reasonable care while performing any acts that could foreseeably harm others” (Wikipedia, 2021). As nurses and doctors there is an oath that is taken and sworn to do no harm. This duty to care was established with Dr. George Paltrow and Mr. and Mrs. Smith when the initial surgery consult came into the office. This is also known as the physician/patient relationship. Dr. Paltrow continued this duty to care throughout the care of Mrs. Smith. There is also a duty to care that was established between Jennifer Brainard and Kyle Jones whom where the nurses that were on duty taking care of Mrs. Smith post-surgery.
Breach of duty: “A duty of care is breached when someone is injured because of the action (or in some cases, the lack of action) of another person when it was reasonably foreseeable that the action could cause injury, and a reasonable person in the same position would not have acted that way” (Pandit, 2009). This was broken by Dr. Paltrow when he performed rounds and did not change gloves between patients and this also occurred by the nurses when they did not call Dr. Paltrow to inform him of the status change.
The injury was done to Mrs. Smith and she became very ill. Ill enough that the nurse thought it would benefit a priest visitation. I do not feel that the hospital is at fault for this. They do need to look at their infection control committee and program and reconstruct that very thoroughly. I feel that Dr. Paltrow is at fault for negligence in this case. Foreseeability: “ The ability to reasonably anticipate the potential results of an action, such as the damage or injury that may happen if one is negligent or breaches a contract”(Foreseeability, 2021). He performed examinations and dressing changes on four different patients with the same gloves. Never changing or washing his hands in between contact. In his interview he stated that no hand washing was a true way for cross contamination. I feel the nurse should also get written up for the actions as well for not notifying the doctor in diligent timing endangering the life of their patient.