The unprevented risk class is conceptually difficult for health care providers to deal with. Risks are usually relegated to this class through inadvertence, not through an intentional assignment. The health care provider does not consciously decide that a risk will be allowed to occur; the provider merely does not do anything to prevent the risk. This is not being negligent, even if the risk is very severe, as long as other providers also do not try to prevent the risk. The problem arises when a risk that is normally prevented by other providers is ignored.
The classic example is in the delivery of emergency medical care. The risk in this situation is that the person who is denied emergency medical care will sustain a permanent injury or die because that person was denied prompt treatment. For example, in Texas there is no statutory requirement that a private hospital make provisions to render emergency medical care to an indigent. While the majority of jurisdictions require a hospital with emergency facilities to render such life-saving care, the specific point has not been reached in a Texas legal case. And, because of the lack of a specific law requiring the rendering of emergency care, the issue has not been addressed in many Texas hospitals. If asked, the administrators of these hospitals would say that their facilities render life -saving care without regard to ability to pay. However, they are also aware that in nonemergency situations their emergency rooms will demand cash deposits of up to $500 before admitting someone for care. The quality control problem is that the demand for cash occurs before the patient is evaluated by a physician.
While the admitting clerk can recognize that someone bleeding profusely from major trauma requires emergency care, a person can have other severe medical problems and yet not appear ill to a layman. The result is that people with emergency conditions that are not obvious (especially sick children) will be turned away because they cannot pay. The patient may die; but, if litigation is brought, the hospital will view the problem as a mistake in diagnosis. The real problem is that a nonphysician is a prevented risk whose occurrence is associated with significant legal liability. In this situation, however, the risk of a nonphysician exercising medical judgment has been classed as an unpreventable risk because of a mistaken perception of the problem that led to the lawsuit. Even if an adverse judgment is rendered, it will have no impact on the hospital's procedures unless the risk manger realizes that the problem is that of a nonphysician exercising medical judgment, not a mistaken medical judgment by a qualified person.
In some cases, a conscious decision is made not to prevent a risk. This is often because of an unfavorable cost benefit analysis or an unfavorable political climate. An example of the latter would be a refusal to allow abortions to be preformed in a facility that has a captive patient population. This presents a significant medical risk to many women, but the facility has decided that the political consequences of performing abortions outweigh the prevention of the medical risks to the women. (Even this decision might have to be reviewed in a situation where the denial of an abortion would result in the woman's death.)
The Climate Change and Public Health Law Site
The Best on the WWW Since 1995!
Copyright as to non-public domain materials
See DR-KATE.COM for home hurricane and disaster preparation
See WWW.EPR-ART.COM for photography of southern Louisiana and Hurricane Katrina
Professor Edward P. Richards, III, JD, MPH - Webmaster
Provide Website Feedback - https://www.lsu.edu/feedback
Accessibility Statement - https://www.lsu.edu/accessibility