Tort Law

1. Evaluate and discuss the potential liability (negligence or other torts) of the various parties in the scenario involving but not limited to Bobby, ACE Sports, the nurse, the surgeon and City General. (Avoid simply restating the facts/scenario. Incorporate them into your discussion. ) 2. Be sure to discuss the elements of negligence as they apply to each party separately, and also discuss the application of EMTALA. 3. Define comparative negligence and discuss its application to the analysis of liability. 4. Discuss joint and several liability.

In this paper I plan to evaluate the scenario concerning Bobby, ACE Sports, the Nurse, the Surgeon and City General Hospital. I plan on explaining why each party should be found negligent, what type of negligence they should be charged with and how the Emergency Medical Treatment &Labor Act (EMTALA) could have prevented the loss of Bobby’s hands. ACE Sports In the scenario Ace Sport engineers are liable for charge with Product Liability. This is because they installed the backboard and rim without carefully examining it.

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The Rim had a piece of metal, which has caused severe injury. This holds the manufacturer, seller or supplier accountable for third party injuries sustained because of a defect in the product. While ACE Sport did not directly amputate the hands of Bobby, it was the source of the severe injury and could have been avoided if installed and inspected correctly. Nurse Williams Nurse William had a duty or standard of care to her patient Bobby that was established the moment Bobby arrived to the emergency room and she place the towel on his injury and told him to apply direct pressure.

In most Emergency Rooms across the nation, standards of care for patients requiring medical treatment for life limb or eyesight do not require consent from a guardian or adult. In this scenario, I believe implied consent should have been understood and the verification of insurance should not have delayed treatment. In addition, further damages followed due to Nurse William not meeting the standard of care and delaying treatment to confirm consent and insurance. Nurse William is liable for charge with negligence since she left bobby to take care of his injuries by himself.

She took a long time (75 minutes) before reaching Bobby’s mother and that is the actual cause of the Bobby’s arms to be amputated. (Ashley, 2004) Surgeon Dr. Andrew can be charged with Gross Negligence. Gross negligence is seen as a complete failure to show care that in fact implies recklessness or a willful disregard for safety and human life. He amputated Bobby’s left hand instead of the right one, thus requiring a second surgery that would remove the right one as well. This can be considered damages.

Damages can be pain and suffering, or can be a loss of the ability to do things a person could have done if not for the injury. (Brent Adams & Associates) The City General Hospital The City General Hospital is also guilty of negligence, due to the fact that they refused medical treatment to a patient that required emergency services. The transfer contributed to the delay in treatment which required Bobby to have surgery. In 1986 Congress passed the Emergency Medical Treatment and Labor Act (EMTALA), part of the 1985 Consolidated Omnibus Reconciliation Act (COBRA).

Most people know COBRA as the law that mandates that a company has to let an employee who leaves pay into the health insurance plan and remain covered temporarily. This mandate protects employees from suddenly losing their health insurance after, for example, being laid off. EMTALA focuses on another issue: the practice of patient “dumping. ” Dumping occurs when a hospital fails to treat, screen, or transfer patients. Not surprisingly, a patient’s ability to pay plays heavily into this treatment.

Before EMTALA was passed, hospitals could transfer indigent patients instead of treating them. Under EMTALA, no patient who arrives in a hospital with an emergency condition will be turned away or transferred unnecessarily. Anyone who shows up in a hospital emergency room will be screened to determine the severity of his or her condition. If the condition is deemed an emergency, the hospital is obligated to stabilize the patient. The hospital can transfer patients only when it lacks the ability to stabilize the patient beyond a certain limit; a transfer to a charity hospital merely to avoid treating the patient is a violation. (Centers for Medicare ; Medicaid Services).

ACE Sport, Nurse William and Dr. Andrew show great negligence in their professional activities and should be sued for the same. All parties contributed to the loss of both extremities and have generated damages that Bobby will have to deal with for the rest of his life. ACE Sports could argue that Bobby could be charged with contributory negligence, in that he utilize their product in a way that it was not intended to be used.

Basketball rims and courts are not designed for kids to give each other boost in order for them to dunk a basketball. While that may a desperate grasp to justify the wrong doing of the contributing parties it is the only defense that I can see a lawyer can take. All could have been avoided if the nurse and hospital would have followed EMTALA and if the Surgeon just would have paid attention to detail. All of their failures will have a child suffer for a lifetime.

Medical treatment Centers need to ensure the all staff members know their roles and practice the appropriate standard of care and avoid being guilty of the elements of negligence. Ashley, R. C. (2004). The fourth element of negligence. Critical Care Nurse, 24(4), 78-79. Retrieved on 4 May2013 from http://ccn. aacnjournals. org/content/24/4/78. full Brent Adams ; Associates. Retrieved on 4 May 2013 from http://www. brentadams. com/library/what-is-negligence-what-is-gross-negligence. cfm. Castaneda, R. (2000). Amputee wins $5. 4 million in suit against hospital.

The Washington Post. Washington, D. C. : March 16, 2000. p. B. 02. Medical Treatment and Labor Act in Florida. Retrieved from http://library. findlaw. com/2000/Aug/1/127864. html. Center for Effective Collaboration and Practice (CECP), The Elements of Negligence Retrieved on 4 May 2013 from http://cecp. air. org/interact/authoronline/february99/3. htm Centers for Medicare ; Medicaid Services (CMS), Emergency Medical Treatment ; Labor Act (EMTALA) retrieved on 5 May 2013 from http://www. cms. gov/Regulations-and-Guidance/Legislation/EMTALA/index. html? redirect=/emtala/.

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