homework 1

 Read carefully Chapters 2, 3, 4, and 5 Power Point Presentations under the Lectures Folder. Select your favorite chapter and write a summary report (250 words) based on your own research. 

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Chapter 5
Criminal Aspects of Health Care
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LEARNING OBJECTIVES
Explain what criminal law is, the classification of crimes, and its purpose.
Describe the criminal procedure process from arrest through trial.
Describe several of the more common crimes that occur in the healthcare setting.
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Criminal law
Criminal law (also known as penal law) is the body of statutory and common law that deals with crime and the legal punishment of criminal offenses.
What is the purpose of criminal law?
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Purpose of Criminal Law
Maintain Public Order & Safety
Protect Individuals
Use Punishment as a Deterrent
Provide for Criminal Rehabilitation
What are the definitions of a crime, misdemeanor & felony?
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Definitions
Crime – social harm defined & made punishable by law.
Misdemeanor – offense punishable by less than 1 year in jail and/or a fine.
Felony – imprisonment in a state or federal prison for more than a year.
What is an arraignment?
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Arraignment
Formal reading of the accusatory instrument
a generic term that describes a variety of documents, each of which accuses a defendant of an offense
includes the setting of bail
What is the purpose of a conference with the defendant and prosecutor?
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Conference
Meeting for purposes of deliberation
Plea bargaining time
Commences with the goal of an agreed-upon disposition
If no disposition can be reached, a case may be assigned to a trial court.
Describe the process of conducting a criminal trial.
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Criminal Trial – I
Jury selection
Opening statements
Presentation of witnesses & evidence
Standard of proof must be beyond a reasonable doubt.
Summations
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Criminal Trial – II
Instructions to the jury by the judge
Jury deliberations
Verdict
must be unanimous
Opportunity for appeal
What does the False Claims Act of 1986 prohibit?
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False Claims Act of 1986
Knowingly presenting a false claim for payment.
making a false record to get a false claim paid.
conspiring to defraud the government.
making a false record to avoid an obligation to pay or transmit property to the government.
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Ethics in Patient Referral Act
Prohibits physicians who have ownership interest or compensation arrangements with a clinical laboratory from referring Medicare patients to that laboratory.
Requires Medicare providers to report the names & provider numbers of all physicians or their immediate relatives with ownership interests in a provider entity.
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Health Care Fraud: HIPAA
Provides criminal & civil enforcement tools & funding to fight health care fraud.
HIPAA requires U.S. AG & Secretary of DHHS acting through OIG to establish coordinated national Health Care Fraud & Abuse Control Program.
Program provides coordinated national framework for federal, state, & local law enforcement agencies; private sector; & public to fight health care fraud.
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Kickbacks
Laboratory
Architectural Contract

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Health Care Fraud: Text Cases
Defrauding Medicare and Medicaid
False Medicaid Claims
Pharmacist Submits False Drug Claims
Inflating Insurance Claims
Falsification of Records
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Falsification of Records
Falsification of medical & business records is grounds for criminal prosecution.
Anyone who suffers damage as a result of falsification of records may claim civil liability.
The provider could lose Medicare & Medicaid funding.
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Misuse and Theft of Drugs
Internet Pharmacy
Failure to review patient prescriptions prior to dispensing.
Fraudulent billing.
Transfer of funds to offshore account.

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Physicians: Victims of Fraud
Prevention
Familiarize themselves with patient-billing & recordkeeping practices.
Avoid having one individual in charge of billing & collection procedures.
Arrange for an annual audit of office procedures & records by an outside auditor.
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Patient Abuse
Patient abuse is the mistreatment or neglect of individuals who are under the care of a health care organization.
Describe the signs of resident abuse the surveyors look for.
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Forms of Abuse
Physical
Psychological
Medical
Financial
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Abuse Cases – I
Criminal Negligence
Reckless disregard for the safety of others.
Willful indifference to an injury that could follow an act.
Neglect of Residents
Abuse & Revocation of License
Abusive Search
Physical Abuse
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CRIMINAL NEGLIGENCE
Neglect of Residents
Abuse and Revocation of License
Abusive Search
Medication Violations and Resident Abuse
Assisted Living Facilities

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Murder
Unusual Number of Deaths
Nurse Sentenced for Diabolical Acts
Fatal Injection of Pavulon
Fatal Injection of Lidocaine
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Petty Theft
Cost Millions Annually
Patient Valuables
Staff Valuables
Supplies
Medical Equipment
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Case: Sexual Assault
An action was filed against a nursing facility after the plaintiff’s mother was sexually assaulted by a dementia patient.
There was testimony that the facility was properly staffed.
There was testimony that the resident suffered no physical injury & she was not aware of the assault.
What was the Court’s decision?
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Court Decision
The court found that the facility had not breached its duty of care.

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Review Questions – I
What are the objectives of criminal law?
Describe the difference between a misdemeanor & a felony. Give an example of each.
List the processes of a criminal trial.
Why has health care fraud been so costly?
Based on cases in the chapter, discuss why physicians historically have been reluctant to remove a patient’s life-support systems.
Discuss why you believe patients are sometimes reluctant to complain about their health care.
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Chapter 2
Health Care Ethics
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LEARNING OBJECTIVES
Describe the concepts of ethics & morality.
Describe how an understanding of ethical theories, principles, virtues, & values are helpful in resolving ethical dilemmas.
Explain the relationship between spirituality & religion.
Discuss situational ethics & how one’s moral character can change as circumstances change.
Explain how one’s reasoning skills influence the decision-making process.
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I expect to pass through this world but once. Any good therefore that I can do, or any kindness I can show to any creature, let me do it now. Let me not defer it, for I shall not pass this way again
−Stephen Grellet
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Ethics
Branch of philosophy that deals with values relating to human conduct with respect to rightness & wrongness of actions & goodness & badness of motives & ends.
Focus on rightness & wrongness of actions.
Concerned with what is morally good & bad, right & wrong.
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Ethics – II
Microethics
individual’s view of right & wrong.
Macroethics
global view of right & wrong.

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Ethics – III
Philosophical Ethics
involves inquiry into
ways of life
rules of conduct
Religious Ethics
a general pattern or“Way of Life”
Professional Ethics
a set of rules or moral code
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Morality
Code of conduct
Guide to behavior
Describes class of rules held by society to govern conduct
Moral dilemmas occur
when moral ideas of right & wrong conflict
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Morality Legislated
Law is distinguished from morality in that
law has explicit rules, penalties, & officials who interpret laws & apply penalties.
Laws created to set boundaries for societal behavior.
laws are enforced to ensure expected behavior happens.
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Moral Judgments
Judgments are concerned with
what an individual or group believes to be the right or proper behavior in a given situation
No Universal Morality
right varies from nation to nation, culture to culture, religion to religion, as well as from one person to the next
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Code of Conduct
Prescribe standards of conduct
States principles
Expresses responsibilities
Defines rules expressing duties of professionals to whom they apply
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Ethical Theories I
Normative Ethics
attempt to determine what moral standards should be followed so that human behavior & conduct may be morally right
General Normative Ethics
Applied Ethics
Descriptive Ethics
Meta-ethics
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Ethical Theories II
Consequential Ethics
theory of ethics that emphasizes morally right action is whatever action leads to maximum balance of good over evil
Utilitarian Ethics
concept that moral worth of an action is solely determined by its contribution to overall usefulness
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Ethical Theories III
Nonconsequential Ethics
Denies consequences of an action are only criteria for determining morality of an action
Deontological Ethics
doing right thing is good
might not always lead to or increase the good & right thing sought after
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Ethical Theories IV
Ethical Relativism
morality is relative to the norms of one’s culture
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Principles of Ethics – I
Ethical principles
universal rules of conduct, derived from ethical theories that provide a practical basis for identifying what kinds of actions, intentions, & motives are valued.
Autonomy
Life or Death: the Right to Choose

Principles of Ethics – II
Beneficence
Nonmaleficence
Justice
Distributive Justice
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Virtues & Values
Virtue
normally defined as some sort of moral excellence or beneficial quality.
Moral value
relative worth placed on some virtuous behavior
What has value to one person may not have value to another.
A value is a standard of conduct.
Values used for judging goodness or badness of an action
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Pillars of Moral Strength – I
Courage
Wisdom
Temperance
Commitment
Compassion
Conscientious
Discernment
Fairness
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Pillars of Moral Strength – II
Fidelity
Freedom
Honesty/Trustworthiness/Truth-Telling
Integrity
Kindness
Respect
Hopefulness
Tolerance
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Spirituality & Religion
Spirituality
in the religious sense implies that there is purpose & meaning to life; spirituality generally refers to faith in a higher being
Religion
serves a moral purpose by providing codes of conduct for appropriate behavior through revelations from a divine source
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Religions – I
Judaism
Hinduism
Buddhism
Taoism
Zen
Christianity
Islam
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Secular Ethics
Based on codes developed by societies that have relied on customs to formulate their codes
Code of Hammurabi
Atheism
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Situational Ethics – I
Outcome or consequences of an action in which ends can justify the means
Moral values & moral character can be compromised when faced with difficult choices
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Situational Ethics – II
Good people behave differently in different situations.
Good people sometimes do bad things
One’s moral character sometimes change as circumstances change
thus the term situational ethics
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Sustaining Life
Situational Ethics
Decision not to use extraordinary means to sustain life of an unknown 97 year old “may” result in a different decision if the 84 year old is one’s mother.
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Reasoning
Decision-Making – I
Reason includes the capacity for logical inference and the ability to conduct inquiry, solve problems, evaluate, criticize, and deliberate about how we should act and to reach an understanding of other people, the world, and ourselves.
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Reasoning
Decision-Making – II
Partial reasoning involves bias for or against a person based on one’s relationship with that person.
Circular reasoning describes a person who has already made up his or her mind on a particular issue and sees no need for deliberation.
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Reasoning
Decision-Making – III
Ethics in decision-making involves the process of deciding the right thing to do when facing a moral dilemma.
Ethical dilemmas occur when ideas of right and wrong conflict.
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Review Questions – I
1. Discuss the concept of morality.
2. Describes the various theories of ethics.
3. Describe the various principles of healthcare ethics.
4. Describe desirable virtues and values in the healthcare setting.
5. Given an example of situational ethics.
6. Discuss the importance of reasoning in the decision-making process.
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Chapter 3
Reflections of the Past
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History is relevant to understanding the Past, defining the Present, and influencing the Future.
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LEARNING OBJECTIVES
Explain purpose of the Patient Protection and Affordable Care Act.
Describe how advances in medicine over the centuries have not consistently been followed & continue to serve as reminders of the need to understand & build upon best practices.
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LEARNING OBJECTIVES
Explain how the conflicts of society due to politics, religion, & warfare have often impeded the growth of hospitals & at times contributed to their progression and many successes.
Describe how the advances in medicine led to the rise of the modern day hospital & improved upon the quality of patient care.
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Who Am I?
I was Created at the End of the Renaissance,
Watched Pirates Rule the Oceans,
As Ivan the Terrible Ruled Russia,
And witnessed the arrest of Galileo,
For Believing the Earth Revolved Around the Sun.
I AM HISTORY
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History, despite its wrenching pain,
cannot be unlived,
but if faced with courage,
need not be lived again.
−Maya Angelou
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Hindu & Early Egyptian Hospitals
6th century BC: Buddha appointed a physician for every 10 villages
built hospitals for the crippled & the poor;
Provided Fresh Fruits & Vegetables
Administered Medications
Provided Massages
Maintained Rules of Personal Cleanliness

Hindu Physicians
Took Daily Baths
Keep Hair & Nails Short
Wore White Clothes
Respected Confidence of Patients
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Egyptian Physicians
Used Castor Oil & Opium
Used Wooden Mallet for Anesthesia
Surgery mostly limited to Fractures
Medical Care in the Home
Temples functioned as Hospitals
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Early Greek & Roman Hospitals
Hospital derives from Latin word hospitalist, which relates to guests & their treatment
Early use of these institutions not merely as places of healing but as havens for the poor & weary travelers
Medical Practice Rife with Mysticism
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Greek Temple Medicine – I
Hospitals first appeared in Greece as Aesculapia
named after Greek god of medicine
Patients Presented Gifts before Altar
Greek Temples – Refuge for Sick
Holistic Medicine – Body & Soul
Medications – Salt, Honey, Sacred Springs
Hot & Cold Baths
Sunshine, Sea Air, Pleasant Vistas
Libraries for Visitors
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Temple at Epidaurus
1st Clinical records
Inscribed on columns of temple
Recorded
Patients Names
Brief Histories
Treatment Outcomes
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Hippocrates – The Physician
Noted for:
Principles of Percussion & Auscultation
Performed surgery
Wrote about fractures
Described Epilepsy, TB, Malaria, & Ulcers
Maintained detailed records
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Early Christian Era
Hospitals Outgrowth of Religion
Care included – Magical & Religious Rites
Doctrines of Jesus – Love & Pity
Sick treated outside temples & churches
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Islamic Hospitals
Luxurious hospital accommodations frequently provided School at Gundishapur
Medical care free
Gundishapur
home to world’s oldest known teaching hospital
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Persian Physician Rhazes
Skilled in Surgery
Used Sheep Intestines for Suturing
Cleansed Wounds with Alcohol
1st descriptions of smallpox & measles
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Islamic Medicine – I
Inhalation Anesthesia
Precautions against Adulterated Drugs
Origination of New Drugs
Asylums for Mentally Ill
Brilliant beginnings in Medicine
Promise that glowed in early medicine not fulfilled
Wars, Politics, Superstitions, stunted growth
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Early Military Hospitals – I
Limestone pillar – 2920 B.C.
Pictures illustrating wounded
Moses laid down rules of Military Hygiene
Hippocrates – “war is the only proper school for a surgeon”
Under Romans, Surgery Advanced
Experience through military surgery
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Medieval Hospitals – I
Religion – dominant influence in hospitals
England built Municipal Hospitals
Military Hospitals during Crusades
Lazar Houses Established

Hotel Dieu of Paris
Provided rooms for various stages of disease
Provided room for Convalescents
Provided room for Maternity Patients
Two persons often shared 1 bed
Draperies not washed, infection spread
Patients often worked on hospital’s farm
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Dark Age of Hospitals
Hospitals Commonly crowded patients into one bed
Monks preserved the writings of Hippocrates
Al-Mansur Hospital, built in Cairo in 1276
Equipped with separate wards for the more serious diseases
laid the groundwork for hospital progress to come in later centuries
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Hospitals of the Renaissance – I
Building of hospitals continued
New Drugs
Anatomy – Recognized Study
New writings Printed
New writings Printed
Dissections Performed
Surgery was more scientific
Van Leeuwenhoek- Microscope
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Hospitals of the Renaissance – III
16th Century
Hospitals associated with Catholic Church ordered by Henry VIII to be given over to secular uses or destroyed
Sick Turned into Streets
Hospitals conditions intolerable
St. Bartholomew’s restored
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Hospitals of the Renaissance – III
Long robed surgeons
Trained in universities
Permitted to perform all surgeries
Royal College of Surgeons founded-1540
Short robed surgeons (barber-surgeons)
Generally allowed only to leech & shave
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Hospitals of the 18th Century
Royal College of Physicians Establishes Dispensary
Medications Distributed at cost to Poor
Free Medical Care for Poor
Controversies & lawsuits
Untimely End to Early Clinic
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Westminster Charitable Society
Established Similar Dispensary in 1715
Established Westminster hospital in 1719
Infirmary built – voluntary subscription
Staff provide services gratuitously
Deterioration of hospitals continues
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Early Hospitals in the U.S. – I
Manhattan Island
1st account of hospital for sick soldiers
Philadelphia
1st Almshouse Established – Philadelphia
The Pennsylvania Hospital – 1st chartered
Williamsburg, VA
Site of 1st Psychiatric Hospital
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Early Hospitals in the U.S. – II
Hotel-Dieu Paris, Dr. Jones wrote
3-5 patients placed in 1 bed
Convalescent patients placed with dying
Fracture cases placed with infectious cases
1/5th of 22,000 patients died each year
Patient wounds washed with same sponge
Infection rate said to be as high as 100%
Mortality after amputation as high as 60%
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Early Hospitals in the U.S. – III
Increase in Surgical Procedures
Inappropriate Wound Care Administered
Wards Filled with Discharging Wounds
Nurses of that period are said to have used snuff to make conditions tolerable
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Late 19th Century Renaissance – I
Nurses used Snuff to make Conditions Tolerable
OR Coats Worn for Months without Washing
Same Bed Linens Served Several Patients
Mortality from Operations 90 to 100%

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Late 19th Century Renaissance – II
Florence Nightingale improves care
Considered 1st hospital administrator
Founded Nightingale School of Nursing – 1860
Crawford Long uses ether as anesthetic to remove small tumor
American Medical Association founded – 1847
Chloroform 1st used as an anesthetic – 1847
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Mass General Hospital – 1846
W.T.G. Morgan Develops Sulfuric Ether
Morgan arranges for 1st operation under Anesthesia, using ether vapors
Surgery at Operating Theater – Mass General
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W.T.G. Morgan
Morgan performed surgery with on looking skeptical audience
Audience Astonished
Patient did not Scream
“Gentlemen,” Dr. Warren proclaimed, “this is no humbug!”
Discipline of anesthesiology was born.

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Semmelweis Of Vienna
Determined Deaths from Puerperal Fever of Maternity patients
due to infections transmitted by students leaving dissecting room to take care of maternity patients without washing hands.
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Civil War Days
As many as 25 to 50 beds in ward
Little provision for segregation of patients.
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Roosevelt Hospital – 1871
Built on lines of pavilion
small wards
set the style for new type of architecture
became know as the American plan
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Dr. W.G. Wylie – 1877
Favored Roosevelt Hospital pavilion
Wylie advocated temporary structure
to be destroyed when it became infected.
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America’s 1st Nursing Schools
Brigham and Women’s Hospital – 1872
Bellevue – 1873
Massachusetts General Hospital – 1873
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Medicine 1880 – 1890
Tubercle Bacillus Discovered
Pasteur vaccinated against anthrax
Koch Isolates Cholera Bacillus
Diphtheria 1st treated with antitoxin
Tetanus Bacillus & Parasite of Malarial Fever Isolated
Rabies Inoculation Successful
Halstead & Rubber Gloves – 1890
Bergmann & steam sterilization – 1886
Roentgen discovers the X-ray – 1895
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19th Century Inventions
Clinical Thermometer
Laryngoscope
Hermann Helmholtz Ophthalmoscope
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Medicine 1880 – 1890
Hospitals crowded, patients suffering
Scarlet Fever
Diphtheria
Typhoid
Smallpox
Most Disorders Untreated for
Metabolism
Glandular Disturbances
Nutritional Diseases
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20th Century Progress
Development of New Services
Progress of Non-profit Insurance Plans
Increased Public Confidence in Hospitals
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20th Century Inventions
Einthoven invents Electro-cardiograph
Wassermann Test for Pancreatic Function
Introduction of Radium for Treatment of Malignant Growths
Increased use of Examination of Tissue
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Hospital Standardization – 1918
American College of Surgeons – development of “Minimum Standards” for Hospitals
Established Requirements for Care of Patients
First Survey Conducted – 1918
Became “Joint Commission on Accreditation of Hospitals” in 1952
Today known as The Joint Commission

1929 Trying Period for Hospitals
Critical economic conditions
Lowered bed occupancy
Decreasing revenues from endowments

Latter Half of 20th Century
Increased hospital competition
Many advances in medical technology
CT, MRI, & PET scanners
For-profit chains spring up
Competing delivery systems
Many new medications introduced
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The 21st Century
47 Million Uninsured Americans
Skyrocketing malpractice insurance premiums
High expectations of the public for miracles
Zero tolerance for mistakes
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The 21st Century- 2
Ethical Dilemmas (e.g., human cloning)
Era of information explosion
Physicians exiting the marketplace
Shortages of nurses, physical therapists
National Health Reform
Insurance
Boutique Medicine
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Just a Beginning
Because history often repeats itself, society must learn from its many lessons; otherwise, it will be doomed for a return to the dark ages of medicine.
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Research: National Library of Medicine
Library collection contains 6 million items
One of worlds finest medical history collections
Website: www.nlm.nih.gov
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What we have come to expect,
and Our future directions,
Have been influenced by what has preceded us.
−Author Unknown

Review Questions – I
1. Who is often recognized as being the first hospital administrator?
2. Which invention attributed to Van Leeuwenhoek had a pronounced influence on the creation of the sciences of cytology, bacteriology, and pathology?
3. What issue did Florence Nightingale identify in the 1800s as being a major source/vehicle for the spread of infection and continues to be so today?
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Questions – II
4. What data did Semmelweis collect? What was the significance of that data as related to performance improvement in the present-day hospital?
5. What were two of the greatest influences in the development of present-day hospitals?
6. Describe how you think history is repeating itself in today’s health care system.
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© 2014 Jones and Bartlett Publishers

Chapter 4
Tort Law
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LEARNING OBJECTIVES
Describe what a tort is and the purpose of tort law.
Identify, understand, and describe the elements of negligence.
Identify and describe intentional torts.
Explain the theories a plaintiff could use in pursuing a products liability case and the defenses a manufacturer might use to defend itself.
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Tort
A civil wrong, other than a breach of contract, committed against a person or property for which a court provides a remedy in form of an action for damages.
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Objectives of Tort Law
Preservation of peace between individuals.
Find fault for wrongdoing.
Deterrence by discouraging the wrongdoer from committing future tortious acts
Compensation to indemnify injured person/s.
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Categories of Tort Law
Negligence
Intentional
Strict liability regardless of fault
e.g., products liability
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Negligence
Commission or omission of an act that a reasonably prudent person would or would not do under given circumstances.
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Commission of an Act
Administering the wrong medication
Administering the wrong dosage of a medication
Administering medication to the wrong patient
Performing a surgical procedure without patient consent
Performing a surgical procedure on the wrong patient
Performing the wrong surgical procedure

Omission of an Act
Failing to conduct a thorough history & physical examination
Failing to assess & reassess a patient’s nutritional needs
Failing to administer medications
Failing to order diagnostic tests
Failing to follow up on abnormal test results
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Malpractice
Negligence of a professional person
surgeon who conducts a surgical procedure on wrong body part
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Criminal Negligence
Reckless disregard for safety of another.
Willful indifference to injury that could follow an act.

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Forms of Negligence
Malfeasance
Execution of an unlawful or improper act, i.e., performing a partial birth abortion when prohibited by law
Misfeasance
Improper performance of an act, i.e., wrong sided surgery.
Nonfeasance
Failure to act when there is a duty to act, i.e., failing to prescribe medications that should have been under the circumstances

Degrees of Negligence
Slight
Minor deviation of what is expected under the circumstances.
Ordinary Negligence
Failure to do what a reasonably prudent person would or would not do.
Gross Negligence
Intention or wanton “omission of care” that would be proper to provide or the “commission of an act” that would be improper to perform.
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Elements of Negligence
Duty to Use Due Care
Standard of care
Breach of Duty
Injury/Actual Damages
Proximate Cause/Causation
Foreseeability
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I. Duty to Care
Obligation to conform to a recognized standard of care.
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Standard of Care
Describes the conduct expected of an individual in a given situation.
Describes how a “reasonably prudent person” would or would not act under “similar circumstances”.
Measuring stick for properly assessing actual conduct required of an individual.
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Reasonably Prudent Person
A nonexistent – hypothetical person who is put forward as community ideal of what would be considered reasonable behavior.
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Similar Circumstances
Circumstances at the time of the injury.
Circumstances of the alleged wrongdoer/s at the time of injury.
Age
Physical condition
Education & training
Licenses held
Mental capacity, etc.

Determining Standard
Established by legislative enactment or administrative regulation.
Adopted by the court from a legislative enactment or administrative regulation.
Established by judicial decision.
Applied to the facts of the case by the trial judge or jury, if there is no such enactment, regulation or decision.
courts often rely on testimony of an expert witness as to the standard of care required.

Community v. National Standard
Community Standard
hometown standard (we want to do things our way).
National Standard
most currently accepted standard of care on a national basis.
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Case: Hiring Practices
Nurse hired sight unseen over telephone.
Applicant falsely stated in an employee application that he was licensed as an LPN.
His license was not verified by the employer.
He had committed 56 criminal offenses of theft.
He assaulted a resident a resident & broke his leg.

Case: Hiring Practices
Duty
Standard expected:
Employer had a “duty” to validate the nurse’s professional license.

II. Breach of Duty
Deviation from the recognized standard of care.
Failure to adhere to an obligation.
Failure to conform to or the departure from a required duty of care owed to a person.
Occurs when
a physician fails to respond to his/her on-call duties.
an employer fails to adequately conduct a pre-employment check (e.g., licensure, background check).

Case: Hiring Practices
Breach of Duty

The employer failed to verify the applicant’s licensure.
A more thorough background check should have revealed this employee’s previous criminal conduct.

© 2014 Jones and Bartlett Publishers

III. Injury
Actual damages must be established.
If there are no injuries, no damages are due.
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Case: Hiring Practices
Injury
The resident suffered a broken leg.
Hospital vicariously liable for nurse’s conduct.
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IV. Causation
Proximate cause
breach of duty was the proximate cause of the injury
But-for Rule
the defendant’s action, the injury would not have occurred

© 2014 Jones and Bartlett Publishers

Case: Hiring Practices
Causation
Reasonable anticipation that harm or injury was likely to occur.
The patient suffered a broken leg
Departing from recognized standard of care
failure to verify licensure & conduct an adequate background check
© 2014 Jones and Bartlett Publishers

Hiring Practices – III
Injury resulted from the breach of duty.
Injury was foreseeable.
© 2014 Jones and Bartlett Publishers

Failure to Hydrate
Causation
Failure to administer proper hydration.
Not unreasonable to conclude that one’s dehydration can be caused by failing to provide water.
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Foreseeability
Reasonable anticipation that harm or injury is likely to result from an act or an omission to act.
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Test for Foreseeability
The test for foreseeability is whether a person of ordinary prudence and intelligence should have anticipated danger to others caused by his or her negligent act.
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Case: Hiring Practices
Foreseeability
A person of ordinary prudence and intelligence should have anticipated the danger to the resident caused by the employer’s negligent act.
© 2014 Jones and Bartlett Publishers

Hot Radiator
Foreseeability
A patient’s left foot came in contact with a radiator and she suffered third-degree burns.
The defendant had knowledge of the plaintiff’s condition.
The defendant should have shielded the radiator or not placed the plaintiff next to it.

Sponge & Instrument Count
Dr. Smith owns the local Outpatient Surgery Center.
He instructs employees to count all instruments & surgical sponges following a surgical procedure, prior to closing the surgical site.
Annie, an employee, failed to conduct the count following Bills surgery.
Two months later, Bill, suffering from extreme abdominal pain, was noted to have several sponges and an instrument in his abdomen.
He had developed a massive infection.
Was the doctrine of Vicarious liability applicable in this case?

YES
Even though Annie had strict instructions to count the sponges & surgical instruments prior to closing the surgical site, she failed to do so.
To determine otherwise would undermine the doctrine of vicarious liability, since employers would almost always escape liability by presenting evidence that employees were given careful instructions.

Failure to Follow Instructions
Sarah has a minor surgical procedure under general anesthesia at ABC Surgery Center.
She was instructed not to drive home after release. Her daughter Leslie picks her up.
On the way home Leslie stops for a donuts. Meanwhile, her mother moves to the driver seat.
Upon leaving the parking lot, Sarah hits Carol’s car.
Carol sustains a broken arm & sues ABC for releasing Sarah before she is completely recovered from the anesthesia.
Was the hospital liable for Sarah’s injuries?

NO!
Sarah was negligent, not the hospital. She failed to adhere to both verbal & written instructions not to drive following anesthesia.
It was Sarah’s duty not to drive and her breach of that duty that caused Carol’s injury.
© 2014 Jones and Bartlett Publishers

Remember
The four elements of negligence must be presented in order for the plaintiff to recover damages caused by negligence.
© 2014 Jones and Bartlett Publishers

Intentional Torts
Assault and Battery
False Imprisonment
Defamation of Character
Fraud
Invasion of Privacy
Intentional Infliction of Mental Distress
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Assault
Deliberate threat, coupled with apparent ability to do physical harm to another. Actual contact not necessary.
Person attempting to touch another unlawfully must possess apparent present ability to commit battery.
Person threatened must be aware of or have actual knowledge of an immediate threat of a battery and must fear it.

Battery
Intentional touching of another’s person in socially impermissible manner without person’s consent.
Failure to obtain consent prior to surgery.
Administering blood against patient’s express wishes.
Physically restraining one who refuses to eat.

False Imprisonment
Unlawful restraint of individual’s personal liberty or unlawful restraining or confining an individual.
Restraining patient without cause.
Locking patient in secluded room for failing to attend therapy session.

Legal Justification for Restraint or Seclusion
Person represents a danger to self or others.
Criminal conduct.
Persons with highly contagious diseases, as provided by state or federal statutes.
© 2014 Jones and Bartlett Publishers

Reducing Use of Restraints – I
Development of policies and procedures that conform to state & federal guidelines
Education & orientation of staff
Education for patients & families
Sound appraisal of need for restraints
Application of least restrictive restraints
Continuous monitoring of patients to determine continuing need for restraints

Defamation of Character
The offense of injuring a person’s character, fame, or reputation by false & malicious statements.
False oral or written communications to someone other than person defamed that tends to hold that person’s reputation up to scorn or ridicule in eyes of others.
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Defamation of Character
Libel – written form of defamation
Signs
Letters
Photographs
Cartoons
Slander – oral form of defamation
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Proof of Defamation
A false & defamatory statement.
Communication of a statement to a person other than the plaintiff.
Fault on the part of the defendant.
Special monetary harm.
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Proof of Harm Not Required
to recover damages when:
Accusing a person of a crime.
Accusing a person of having a loathsome disease.
Using words are harmful to a person’s profession or business.
Calling a woman unchaste.

Libel – Performance Appraisals
Performance appraisals are not meant for general publication.
To recover damages, the appraisal must be published in defamatory manner that injures one’s reputation.
© 2014 Jones and Bartlett Publishers

Cartoon – I
Jack draws a cartoon depicting Paul having a rendezvous with a new grad nurse in an empty patient room. The incident in fact never occurred.
Can a defamatory statement can take the form of a cartoon?
Yes, a defamatory statement can take the form of a cartoon because it is capable of adversely affecting a person’s reputation.
© 2014 Jones and Bartlett Publishers

Newspapers Articles
Newspaper editorial cartoon depicting 3 persons resembling gangsters in dilapidated building, identified as particular facility that had been closed by state order, was an expression of pure opinion and was protected by 1st Amendment.

Accused of an Affair
Nurse Rachet suggests to Dr. Smith that he should leave his wife Sharon because she is having an affair with Dr. Doe. Dr. Smith writes a letter to Mrs. Doe, repeating Rachet’s statement.
Assuming Dr. Smith’s letter is defamatory, is it libel or slander?

Accused of an Affair
It is libel, even though Dr. Doe is repeating a slanderous statement.
The reverse is not true – the spoken repetition of a written defamation is still considered libel.
The rule is: once libel, always libel.
© 2014 Jones and Bartlett Publishers

Slander
Person who brings suit must prove special damages.
When defamatory words refer to person in professional capacity, professional need not show that words caused damage.
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Defenses to a Defamation Action
Truth – no liability for defamation if it can be shown that statement is true.
Privilege
Absolute
Qualified
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Absolute Privilege
Statements made during judicial & legislative hearings
Confidential communications between spouses
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Qualified Privilege
Statements made as result of a legal or moral duty to speak in interests of 3rd persons
Statements must be without malice
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Public Figures
Vulnerable to public scrutiny
Suits generally dismissed in absence of
malice
actual knowledge statements are false
recklessness as to truth
© 2014 Jones and Bartlett Publishers

Proof of Fraud
Misrepresentation by the defendant.
Knowledge of falsity.
Intent to reduce reliance on misrepresentation.
Justifiable reliance by the plaintiff.
Damage to the plaintiff.
© 2014 Jones and Bartlett Publishers

Health Care Fraud
Billing Tradename Drugs/Issuing Generic
Office Visits/Double Billing
Billing for Services not Rendered
Accepting referral fees
© 2014 Jones and Bartlett Publishers

Invasion of Privacy
The right to
be left alone
be free from unwarranted publicity
be free from exposure to public view
be free from unwarranted intrusions into a one’s personal affairs
personal privacy
have records/kept confidential

Intentional Infliction
of Mental Distress
Conduct that is so outrageous that it goes beyond bounds tolerated by decent society.
© 2014 Jones and Bartlett Publishers

Mental Distress
Grief
Shame
Public humiliation
Despair
Shame
Human pride
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Mental Distress
Mother shown premature infant in a jar.
Johnson v. Womens Hospital
Verbally abusive physician to patient and/or spouse.
Greer v. Medders
© 2014 Jones and Bartlett Publishers

Fraud
Willful & intentional misrepresentation that could cause harm or loss to person or property.
e.g., purposeful concealment from patient of the presence of surgical sponges in his/her abdomen following surgery.
© 2014 Jones and Bartlett Publishers

Products Liability
Liability of a manufacturer, seller, or supplier of chattels to a buyer, or other third party for injuries sustained because of a defect in a product.
© 2014 Jones and Bartlett Publishers

Products Liability Legal Theories
Negligence
Breach of warranty
Express
Implied
Strict liability
© 2014 Jones and Bartlett Publishers

Negligence
Duty
Product manufactured by the defendant
Breach
Product defective when it left the manufacturer
Injury
Plaintiff/s injured by the product
Causation
Product proximate cause of injury
© 2014 Jones and Bartlett Publishers

Defective X-ray Unit – I
Mindy places Candice on the table of the hospital’s newly manufacturer-installed x-ray unit.
While in the control room, Mindy hears a crash.
She rushes to the patient & finds that a section of the x-ray unit fell on Candice, further injuring her already broken leg.
Candice sues the manufacturer for negligence.
Can the manufacture be held liable for the plaintiff’s injuries?
© 2014 Jones and Bartlett Publishers

YES!
Duty: manufacturer to properly install the x-ray unit.
Breach: failure to properly install the x-ray unit.
Injury: plaintiff suffered injury.
Causation: improper installation was the proximate cause of the plaintiff’s injury.
© 2014 Jones and Bartlett Publishers

Express Warranty
Includes specific promises or affirmations made by seller to buyer.
e.g., drug manufacturer represents the product as free from addiction & is not
Crocker v. Winthrop Laboratories

*

Implied Warranty
A warranty that exists by operation of the law as a matter of “public policy” for protection of the public.
e.g., consumers have right to assume that food is not contaminated
Jacob E. Decker & Sons v. Capps

Strict Liability
Liability without fault
Elements required to establish strict liability
Product manufactured by defendant
Product defective at time it left manufacturer
Plaintiff injured by product
Defective product proximate cause of injuries
© 2014 Jones and Bartlett Publishers

Wrong Medication – I
Stanley refills his drug prescription at D Drugs, where he has been a customer for 10 years.
Prior to taking his nightly dosage, he noticed the pill appeared larger than normal.
He phoned D Drugs & explained his concern.
The Pharmacist assured Stanley generic drugs sometimes are larger because of formula fillers but that the medication dosage in his drug was correct.
© 2014 Jones and Bartlett Publishers

Wrong Medication – II
Stanley took the drug & never woke up; the dosage given was 5 times that which had been prescribed.
The container from which the pharmacist filled Stanley’s prescription had been mislabeled by the manufacturer.

Wrong Medication – III
Court’s Decision
Product was manufactured by the defendant
Product defective at time it left manufacturer
The drug was placed in a mislabeled container.
Plaintiff injured by the product
Stanley passed away in his sleep.
Defective product proximate cause of injuries
The mislabeled container was the proximate cause of Stanley’s death.

Products Liability
Res Ipsa Loquitur
Must establish
Product did not perform in way intended
Product not tampered with by buyer/3rd parties
Defect existed at time it left defendant
© 2014 Jones and Bartlett Publishers

Products Liability Cases
Tainted Tylenol Capsules
Elsroth v. Johnson & Johnson
Manufacture of unsafe drugs
Merck’s Vioxx
© 2014 Jones and Bartlett Publishers

Products Liability Defenses – I
Assumption of the Risk
voluntary exposure to risks: Smoking, radiation therapy, Chemotherapy
Intervening Cause
an IV solution contaminated by product user
Contributory Negligence
use of product in a way it was not intended to be used.

Products Liability Defenses – III
Comparative Fault
injury due to concurrent negligence of both manufacturer & plaintiff.
Disclaimers
manufacturers inserts
© 2014 Jones and Bartlett Publishers

Review Questions – I
Describe the objectives of tort law.
Discuss the distinctions among negligent torts, intentional torts, and strict liability.
What forms of negligence are described in this chapter?
How does one distinguish between negligence and malpractice?
What elements must be proven in order to be successful in a negligence suit? Illustrate your answer with a case (the facts of the case can be hypothetical).
© 2014 Jones and Bartlett Publishers

Review Questions – III
Can a “duty to care” be established by statute or contract? Discuss your answer.
Describe the categories of intentional torts.
How does slander differ from libel? Give an example of each.
What is products liability? Describe what legal theories an injured party may use in proceeding with a lawsuit against a seller, manufacturer, or supplier of goods.
Describe the defenses often used in a products liability case.

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