Bobby and Rachel Liability There Is Potential

Bobby and Rachel Liability

There is potential liability on the part of the various parties in the scenario involving Bobby, the nurse, the surgeon and City General Hospital. In this essay, the author will consider each party's responsibility and potential liability/neglect separately. We will define comparative negligence and discuss its application to the analysis of liability in the scenario. As we shall see further on, there is an inherent contradiction between the cost containment of managed health care and the law, but this does not excuse the gross negligence of the medical staff or reduce the ability of the plaintiff for civil damages.

EMTALA (Emergency Medical Treatment and Active Labor Act) requires almost all hospitals to provide an examination and needed stabilizing treatment, without consideration of insurance coverage or ability to pay, when a patient presents to an emergency room for attention to an emergency medical condition that requires immediate attention. Specifically, transfers to other facilities are forbidden unless this done in consultation an emergency room doctor who certifies in writing that the facilities of another hospital can provide superior services or that the transfer is medically necessary. If a physician is not present, then the most qualified medical professional must do the certification in consultation with the patient or their legal guardian. Specifically and most significantly, the statute provides for a private right of tort action so that the harmed individual can obtain equitable relief and fiscal compensation for damages ("Title 42 >,").

Punitive action that can be taken against the hospital can include tough enforcement provisions such as the termination or suspension of the Medicare provider's as well as civil penalties. As the Rothenberg article pointed out in 1989, even with the passage of COBRA, violations are numerous and often. (Rothenberg, 1989, 22) . This is due to the pressures of the financial dictates of the managed health care system. Accountability for reasonableness and the discretion of on-site medical personnel must be promoted and programed into the system to leaven and mitigate issues (Daniels, & Sabin, 1998, 55). Certainly, they are the most qualified to judge rather than some bean counter in an HMO or an insurance company who is examining records after the fact. The medical emergency has to be mitigated first and petty financial issues can be worked out later. The civil legal system needs to be applied to mitigate this. This unfortunate mentality contributed to the hospital's outrageous conduct and their mistaken logic would likely come out in any court case.

Using the legal logic of the United States statute, the on-duty nurse did not provide immediate and appropriate palliative care to Bobby on the spot (bandages, disinfectant etc.). This treatment was held up specifically due to a delay to check insurance. City General Hospital would then be liable due to the rules it instituted for its employees which the nurse was duty bound to ignore because they were patently illegal (ibid). Besides the legal liability, the nurse and City General Hospital are liable due to gross medical malpractice. Separately, the surgeon is liable due to gross medical malpractice in mistakenly diagnosing the wrong hand to amputate which then led to the double amputation.

Issues of comparative negligence may mitigate some of the above issues, if the actions of Rachel and Bobbie on the playground can be seen to be of a comparative nature. The California Courts introduced the concept of comparative negligence with Li v. Yellow Cab Co. In 1975. In this case, the pedestrian crossed three lanes of oncoming traffic to walk into a gas station. Under this doctrine of comparative negligence, the liability is based upon a relative percentage of each party's fault if both parties are at fault. Under such a definition, there is no all or "nothing rule," but rather contributory negligence is defined as multi-party in nature ("Li v. yellow," ) . Certainly, the medical personnel bear the majority of the responsibility, but some responsibility is borne by the children for a reckless act. If they had not made the slam dunk on the basketball backboard, none of the events would have occurred.