Law and Ethics in Health Care

• Laws evolve from circumstances, not invention

Chapter Objectives

• Various sources of law in the United States and their effect on healthcare professionals
• The difference between intentional and unintentional torts
• The PYTHON principle
• Liability and its impact on healthcare professionals

Key Terms

• Administrative law
• Assault and battery
• Assumption of risk
• Borrowed servant rule
• Breach of duty
• Causation
• Civil action
• Common law
• Constitutional law
• Contributory and comparative negligence
• Criminal action
• Damages
• Denial
• Defamation of character
• Doctrine of res ipsa loquitur
• Doctrine of respondeat superior
• Duty
• Embezzlement
• False imprisonment
• Fraud
• Invasion of privacy
• Liability insurance
• Malfeasance
• Misfeasance
• Negligence
• Nonfeasance
• PYTHON principle
• Scope of practice
• Statute of limitations
• Statutory law
• Tort (intentional and unintentional)

For Your Consideration

• Healthcare professionals have an ethical duty to protect patients from potential harm
• Knowledge and understanding of healthcare laws is essential for self and patient protection

Sources of Law

• Laws in the United States originate from the Constitution, the judicial system, and federal and state governments
• These sources are interrelated, necessitating an understanding of each

Constitutional Law

• The U.S. Constitution is the supreme law, outlining the rights and responsibilities of federal, state, and individual entities
• All new laws must comply, or it cannot be upheld
• The Commerce Clause enables the government to create programs that regulate economic activity

Common Law

• Under the Constitution the federal government has executive, legislative, and judicial branches
• States have their own governmental systems, inclusive of a judicial branch
• Common law is established by the judicial branch and is the outcome of court cases
• Roe vs. Wade established the common law right to privacy regarding reproductive rights for women
• The Oregon Supreme Court upheld the common law right to privacy regarding a patient's right to choose their method of death

Administrative Law

• The federal government can create agencies with the right to implement laws, known as regulatory or administrative law
• The Food and Drug Administration and the Office of Civil Rights are agencies that implement laws related to health care
• The Controlled Substances Act is a specific administrative law pertaining to healthcare providers
• Part of the Comprehensive Drug Abuse Prevention and Control Act of 1970, it gives the Drug Enforcement Agency and the Department of Health and Human Services authority to categorize drugs into schedules
• These schedules determine who is authorized to administer and obtain those drugs

Statutory Law

• Federal and state governments create their own laws, starting as bills approved by legislative branches and signed by the president (federal) or governor (state)
• The president and governors can issue executive orders
• All statutory laws and executive orders must comply with the Constitution
• An example of statutory law is Good Samaritan laws
• Good Samaritan laws provide immunity to citizens assisting victims in an emergency and tend to be state specific
• Some states imply a duty to assist
• Others only provide immunity if they choose to assist
• Mandatory reporting laws are created by states and require healthcare professionals to report suspected abuse cases
• Statutory law is divided into civil and criminal categories
• Criminal action is a wrong against society
• Civil action is a wrong between individuals
• Actions can be both civil and criminal
• Criminal cases may result in confinement, probation, or community service
• Civil cases may result in fines or orders to perform/not perform a specific action
• If an incident is tried as both a criminal and civil case, the criminal trial is generally held first
• Criminal cases require the trier of fact, usually a jury, to find the defendant guilty "beyond a reasonable doubt"
• Civil cases require only a preponderance of evidence

Torts

• Statutory laws provide remedies for wrongs against society or individuals
• Wrongs against individuals are called torts; divided into intentional and unintentional categories
• Healthcare related intentional torts include assault and battery, false imprisonment, defamation of character, invasion of privacy, fraud, and embezzlement

Assault and Battery

• Historically, assault was the threat of harm, and battery was the actual physical harm
• Today, most states consider both under the term assault, including unwanted touching
• Violent physical acts occasionally occur in healthcare, but often cases involve unwanted touching or performing a procedure without consent
• Patients sign consent forms before procedures; oral consent is legally binding but harder to prove
• Patients must be informed of changes to a procedure prior to the change
• Changing procedures or medical professionals without consent damages the healthcare provider-patient relationship and can result in lack of trust
• If the patient is not informed of these changes and the procedures are completed, the provider can be charged with assault

False Imprisonment

• Considered as holding a patient against his or her will
• Includes the use of restraints for nonmedically approved reasons

Defamation of Character

• Occurs when a person's reputation is damaged by spreading untrue information
• Gossiping about coworkers or patients is unethical, but if the information is true, it is not defamation of character.
• Defamation of character has two subcategories: slander and libel
• Slander is spoken, and libel is written

Invasion of Privacy

• Intrusion into another's private life without medical cause
• Different than violating HIPAA's Privacy Rule because it extends farther than protected health information
• Damaging information made public regarding any healthcare employee or patient can be considered invasion of privacy

Fraud

• Deceitful practices that deprive someone of their rights
• False promises, upcoding and insurance fraud are examples
• Upcoding is charging insurance companies for a higher reimbursed procedure than performed
• Individual therapy sessions billed instead of cheaper group sessions is an example of upcoding
• Medicaid and Medicare fraud has become common and costly to taxpayers
• Never promise an outcome to a patient, because no outcome is guaranteed

Embezzlement

• Can be considered as converting property for your own use that you can rightly access but don't own
• Generally, this involves an employee taking money from business accounts to which they have rightful access
• Is not the same as stealing because in cases of embezzlement, the employee has legal access to the funds, but chooses to take some for personal use

Unintentional Torts

• Commonly known as negligence
• Can occur in any field where a duty is owed
• Licensed healthcare professionals are legally liable for their employment actions and must uphold an appropriate standard of care
• Standard of care is determined by what other professionals would reasonably do in similar circumstances
• Four components are needed for a successful unintentional tort claim: duty, breach of duty, causation, and damages

Duty

• Established when a healthcare professional agrees to treat a patient
• The standard of care for healthcare professionals is determined by what other members of the same profession would do in a similar situation

Breach of Duty

• The failure of a healthcare professional to act as any ordinary and prudent healthcare professional within the same community would act in similar circumstances
• Any outcome of a procedure that the patient was not informed about may constitute negligence

Breaches fall under three general categories

• Misfeasance is when a mistake is made
• Giving the patient the wrong medication is an example
• Nonfeasance is a failure to act
• Forgetting to turn a patient and resulting in bedsores is an example

Malfeasance

• Is negligence with mal-intent
• Holding a noncooperative patient too tightly blood drawing resulting in bruising is an example

Causation

• Requires the injury to be closely related to the healthcare professional's negligence
• Patients must prove that the healthcare workers breach was a direct cause of the injury
• Patients must prove that there were no other causes that could have caused the injury
• Careful medical records are important and can be used as evidence

Damages

• The actual injuries caused by the defendant for which compensation is due

Doctrine of Respondeat Superior

• States that employers are responsible for actions (FIGURE 7-2): This responsibility includes training of employees

Defenses

• These are available if a healthcare professional is blamed in a tort
• They include denial, assumption of risk, comparative and contributory negligence, statute of limitations, and borrowed servant

Denial

• The most common defense in negligence cases
• The defendant does not claim damages did not occur, but rather that there was another explanation or cause

Assumption of Risk

• The understanding that certain procedures can result in commonly known injuries
• Patients give permission/refuse medical advice and are asked to sign consent forms to show they understand involved risks

Negligence

• In contributory negligence, the patient or others are determined to be fully or in part responsible for the injury
• In this case, they cannot receive monetary compensation for damages
• Comparative negligence states that the plaintiff's actions helped cause the injury but differs in that can recover damages based on the amount of the defendant's fault

Statutes of Limitations

• Determine the number of years a plaintiff has to file a claim of negligence
• In medical malpractice cases, the statute of limitations begin at the time the injury is discovered
• States have their own statutes; they are generally 3-7 years

Borrowed Servant Rule

• Generally used by employers that have temporary workers/medical professionals who fill in for others on leave
• If a plaintiff sues a healthcare facility regarding the actions, the facility might utilize the borrowed servant rule and escape liability for injury caused by the temporary employee

Liability Insurance

• Provides financial protection from claims that arise from patients who believe they have been a victim of medical malpractice while under the care of a healthcare professional (Mello, 2006)
• Most healthcare providers need to buy some form of professional liability insurance
• States generally require that physicians have liability insurance or work for a medical group that shares a liability plan
• Physicians will generally carry liability insurance that includes a rider that covers the employees under them
• Other healthcare professionals should check with their employer to if they are covered by a general liability policy or if they are responsible for obtaining their own
• Some professional organizations, such as the American Association of Medical Assistants and the American Speech-Language and Hearing Association, offer liability insurance at a group rate for members
• Healthcare professionals need to protect their assets as well as their professional status
• Healthcare professionals face potential lawsuit even when they are not guilty of any wrongdoing

Scope of Practice

• In upcoming healthcare careers specific skills and knowledge are needed to properly do the job
• Boundaries of what you can/cannot do and regulations that dictate these boundaries are called your scope of practice
• Limitations, rules, and professional protocol that control what is proper within a given field

Scope of practice according to job description

• The medical office receptionist (MOR)'s job description could include:
  • Receiving patients
  • Making sure patients sign in and that their information is promptly removed from the sign-in area for confidentiality purposes
  • Distributing patient information forms and having the patient complete and return them
  • Making patient appointments

Defining the MORs role

• All duties should be specific to the job
• The MOR should not be performing duties suited to the medical assistant
• Logically, the MOR would not be trained/skilled at physician duties such as giving a diagnosis or referring patients
• There may be times when a coworker needs the MOR's assistance, and this is perfectly acceptable as long as that is trained to do that duty
• The entire healthcare team in a clinic, hospital, or any medical facility should work together to deliver the highest level of professionalism possible

The PYTHON Principle

• Preventing a lawsuit is a constant effort; Every patient encounter is a chance of oversight that could trigger legal action
• Commencement of legal action does not always end in liability or a guilty verdict, but it is better to avoid the chance
• Is an easy way to posture yourself for prevention that stands for Respect Yourself; Think Honestly; Observe Naturally (FIGURE 7-4)

Respect Yourself

• Means you are aware of the various ways you could be held liable as a legal professional
• Patient confidentiality is an example; If you send a fax containing confidential information to anyone, you put yourself at risk of breaching confidentiality
• Preventable if a consent form has been signed and dated by the patient

Honesty

• A foundation building block of ethics
• Honest dealings with patients, coworkers, employers, and even the legal system will help prevent future complications
• Never promise results

Observations

• Are critical for all healthcare professionals
• Keeping track of observations and taking them all into consideration can help prevent legal action

Putting It All Together

• Become familiar with the three branches of government as well as the four types of laws
• Understanding that the healthcare professional can be the target of a lawsuit should remind you to be at your professional best every day
• The welfare of the patient is the foremost job of the healthcare professional
• Focus on your duties within your scope of practice and document patient information well
• Note what you did do and what you did not do