Civil Law & Ethics in Respiratory Therapy

Introduction to Civil Law

• Civil law is backed by state statutes that regulate conduct, potentially imposing criminal or civil penalties
• State statutes and professional boards set standards for therapist practice, including continuing education
• Common law of civil liability mandates compensation for injuries resulting from negligent or intentional acts

Distinguishing Illegal and Unethical Acts

• Illegal acts are violations of laws applicable to all citizens, like domestic assault
• Ethical misconduct involves breaching professional norms established within a profession

Philosophical Origins of Ethics

• Ethics originates from philosophy, with a focus on wisdom and knowledge pursuit
• Ethics centers on the question of how people should act in various situations
• It embodies commitment to the principle of respecting the humanity of every individual

Ethical Challenges in Respiratory Therapy

• Respiratory Therapists often encounter ethical and legal dilemmas

These include:

• Rationing of care
• Competing with third-party standards of care
• Delivering adequate care amid cost and corporate pressures
• Staffing shortages
• Navigating HIPAA (Health Insurance Portability & Accountability Act)
• PPACA (Patient Protection & Affordable Care Act of 2010) implications

Managed Care and Ethical Conflicts

• Healthcare has shifted from fee-for-service to managed care models
• Managed care relies on restrictive gatekeeping, requiring pre-approval from payers for hospitalization and procedures
• Ethical dilemmas arise when therapists believe patients require more care than insurance covers

Ethical Dilemmas in Understaffed Departments

• RTs in understaffed settings may face ethical dilemmas, such as skipping treatment for a patient who isn't improving
• Without a protocol, this decision can violate professional norms
• It may be considered unethical to favor one patient over another based on factors outside of their control

Importance of a Code of Ethics

• Codes of ethics are essential for self-regulating professions
• The AARC has a Statement of Ethics and Professional Conduct which sets behavior parameters for its members
• Moral obligations impose ethical duties on therapists, and become tools in legal proceedings

Mini Clini: Ethical Decision-Making Process

• Read the presented problem scenario, then determine how you would act
• Analyze the Discussion Questions, recognizing the complexities of the decision
• Process each point in the Guidance section
• Use it as an opportunity to grow as a professional

Understanding Autonomy in Ethics

• Autonomy acknowledges patients' rights to personal liberty and treatment decisions
• Underlines "informed consent," requiring the use of honesty when acquiring consent
• Deceiving a patient to reverse a decision to refuse treatment is unethical

Veracity and Truthfulness in Healthcare

• Veracity requires both providers and patients to be truthful
• Problems arise with benevolent deception, e.g. withholding truth for a patient's "own good"
• Honesty is usually the best approach
• A survey showed that 94% of Americans wanted full disclosure even with bad news
• Be very careful with communication with patients and withholding facts

Patient's Right to Refuse Treatment

• Refer to Mini Clini on page 72 for details on this ethical issue

Guidelines for Nonmaleficence

• This requires healthcare providers to avoid harm and actively prevent it if possible
• Avoid harm unless it is for a beneficial outcome
• Evaluate all risks before acting
• If the RT means well then harm that comes to the patient, the resulting harmful event is viewed as unintended

Beneficence in Patient Care

• Raises the "do-no-harm" standard
• Always act in the patient's best interest
• Healthcare workers must contribute to their patients' health and well-being
• Prevent doing harm
• Consideration of such dilemmas have led to the creation of advanced directives

Beneficence Example

• Keeping patients alive today may not lead to any meaningful recovery
• Patients who are quadriplegic or have ALS, kept alive on a vent, may not have any quality of life
• Recovery might be impossible and patient quality of life impacted
• Ethical issues are brought up if everything is to be done to save them
• It is up to patient and family to decide
• This is why advanced directives are so important

Advance Directives

• Give patients the right to make choices before adverse events happen
• This ensures that their wishes will be respected
• Two types: Living Will (Patient specifies wishes) and Durable POA (Patient assigns decision maker)

Confidentiality

• Requires healthcare workers to respect the patient's rights to privacy, even after death
• Breaches of privacy may occur during situations like child/elder abuse, or gunshot wounds
• Healthcare workers may share patient medical history in only certain situations
• Advent of social media has exponentially increased risks of disclosure of PHI

Justice in Healthcare

• This involves fair distribution of care
• Expenses of healthcare should be balanced with the ability to pay
• Rationing of services calls for "distributive justice"
• Compensatory justice is sought from damages incurred from medical malpractice
• Less than 2% of healthcare costs relate to malpractice or negligence lawsuits

Definition of Role Duty

• Practitioners must understand the limits of their role and practice within them
• It is not the duty of an RT to describe how critical a patient's health condition may be to family members
• An RT must never perform duties that fall outside of their role

Making Ethical Decisions

• Everyone makes decisions differently considering upbringing, education and other sources

Understanding Formalism

• This relies on rules and principles when taking action
• Understanding if actions are right or wrong based on rules and principles

Understanding Consequentialism

• Actions should be judged as right or wrong based on the result
• This often uses the principle of utility: Aiming to promote the greatest good for the most people

Formalist & Consequentialist Example

• During WWII there was an antibiotics shortage that raised these concerns
• Soldiers needed antibiotics from wounds related to brothels and battle
• What was the first thought about who should get them
• Formalists believe that antibiotics should go to those who are the sickest
• Consequentialists believe that those in battle should get them, as they are needed to win the war

Mixed Approaches to Moral Reasoning

• This involves a rule utiliarianism approach which is related to consequentalism
• It questions whether a "rule" would promote the greatest good, more than a given "act"

Disadvantages:

• Variability between caregivers
• Differences in values
• differences in education
• increased risk of inconsistent ethical decision making

Discussing Virtue ethics

• This is founded not in rules/consequences, but in personal virtues
• Example: "How would the good RT act?"
• This calls for behavior based on what "good practitioners" do in certain circumstances
• Example: If working with a negligent RT, what would you do?
• This is probably the way most RT's make decisions

Discussing Intuitionism

• In this ethical view, there are evident truths that are based in moral maxims: like "Treat others fairly" and "Look before you cross the street"
• These intuitive abilities depend on the abilities of any specific caregiver
• Caregivers backgrounds make them who they are

Public Law

• Public law has two major divisions, criminal and adminstrative
• It deals with the relationship of private individuals with government
• Criminal law protects public safety
• This is punishable by fines or imprisonment
• Adminstrative law deals with government regulations which RT's must obey

Civil Law

• Civil law protects citizens from any unfair advantage taken
• It is about recognition of rights and duties of private individuals and organizations
• Civil courts decide if plaintiff has been wronged and the reparation amount that is required

Definition of Tort Law

• Tort law involves civil wrong and is used to keep the peace between individuals
• It is used to substitute a compensatory remedy for personal injury instead of revenge
• There are three types, negligent, intentional and liability which is assessed regardless of fault
• Intentional torts involve willful acts violating another's interest
• Negligent tort is failing to perform one's duties competently

Damages Related to Negligence Lawsuits

• Damages are part of negligence lawsuits and involve three types
  • Economic: awards for economic loss
  • Noneconomic: awards for compensation of pain, loss of life
  • Punitive: awarded to punish misconduct or deter future behavior

Elements of Negligence

• Practitioner owes a duty to a patient
• Practitioner breaches duty
• Breach of that duty causes harm
• Damage results

Classifications of malpractice:

• Criminal: assault, battery
• Civil: negligence
• Ethical: violating professional ethics, perhaps leading to censure

Tort defenses

• No harm intended
• Patient gave full consent

How to Avoid Lawsuits

• Conforming legally to aspects of licensure and standards of care
• Instituting a risk management policy
• Malpractice insurance is recommended
• Improving guest relations

HIPAA

• HIPAA is the health insurance portability and accountability act of 1996
• This created standard privacy for the individual
• Goal is to protect health information and allow health information easier to share

Medical Supervision

• RT's need that supervision
• RT actions physician and hospital have liability
• Physician may have hospital liability
• Legal theory of failure to supervise
• "Respondeat superior" which means "let the master answer"

Professional Licensure Issues

• Every RT should know: Respiratory Care Practice Act (Licensure Statute)
• Therapist-driven protocols: Therapists can make judgements without a supervisor. Higher chance of challenge in court
• Understand causes of discipline, domestic violence, drug abuse/use, sexual abuse, gross incompetence

Corporate compliance officer (CCO)

• They make sure procedures follow guidelines
• Arising during care that are ethical/legal

The Patient Protection and Affordable Care Act (PPACA)

• Better protections for whistleblowers

National Labor Regulations Act (NLRA)

• Protection for hospital workers who aren't in a union
• Protecting acts that support all employees

Discuss False Claims Act

• Not making false claims
• Heavy punishments
• Pay back 3x claim
• Can be civil penalties

Importance Health and Changes

• How funded the patients are the heath work

Healthcare

• Constant change makes decision harder

Specific Considerations

• Legal ideas such as tort laws
• External mandates
• Managing outcome

Health Care Advanced Directives

• Advanced healthcare
• 1991 self determination
• Guidelines with state