Sources of Law: Constitutional & Common Law

• Laws evolve from circumstances.

Sources of Law

• Laws in the United States come from the Constitution, the judicial system, and federal and state governments.
• These sources are connected and should be understood in relation to each other.

Constitutional Law

• The U.S. Constitution is the highest law, outlining the rights and responsibilities of federal and state governments, and individuals.
• All laws must comply with the Constitution.
• Unconstitutional laws are not valid.
• The Commerce Clause allows the government to regulate economic activity.
• In 2011, the 11th Circuit Court of Appeals ruled that the government cannot force citizens to purchase healthcare insurance, deeming it beyond the Commerce Clause, but the Supreme Court upheld the law upon appeal.

Common Law

• The federal government has executive, legislative, and judicial branches, as do state governments.
• Common law is established by the judicial branch through court cases.
• The Supreme Court case Roe vs. Wade established a common law right to privacy regarding reproductive rights for women.
• The Oregon Supreme Court upheld a patient's right to choose their method of death, as a common law right.

Administrative Law

• The federal government can create agencies to implement laws, known as regulatory or administrative law.
• The Food and Drug Administration and the Office of Civil Rights are examples of agencies that implement healthcare-related laws.
• The Controlled Substances Act, part of the Comprehensive Drug Abuse Prevention and Control Act of 1970, gives the Drug Enforcement Agency and the Department of Health and Human Services authority to categorize drugs and determine who can administer or obtain them.
• These rules have the effect of law.

Statutory Law

• Federal and state governments create statutory laws, which start as bills, and must be approved by both legislative branches before being signed by the president or governor.
• Statutory laws and executive orders must comply with the Constitution.
• Good Samaritan laws are statutory laws that provide immunity to citizens assisting victims in emergencies. Minnesota's laws suggest a duty to assist, while other states only provide immunity if they choose to assist.
• Mandatory reporting laws require healthcare professionals to report suspected abuse cases.
• Statutory law is divided into civil and criminal categories.
• Criminal action is a wrong against society, while civil action is a wrong between individuals.
• An action can be both criminal and civil.
• Criminal cases can result in confinement, probation, or community service.
• Civil cases result in fines to the victim or their family, or an order to perform a specific action.
• Criminal trials are generally held before civil trials.
• Criminal cases require proof "beyond a reasonable doubt," while civil cases require only a preponderance of evidence to find the defendant guilty.

Torts

• Some statutory laws offer remedies for wrongs against society or individuals, called torts.
• Torts are divided into intentional and unintentional categories.
• Common intentional torts in healthcare include assault and battery, false imprisonment, defamation of character, invasion of privacy, fraud, and embezzlement.

Assault and Battery

• Assault meant the threat of harm, and battery was the actual physical harm, but most states consider both as assault, including unwanted touching.
• Teen perpetrators in the Good Samaritan Home case were likely liable for committing intentional torts against victims through unwanted touching.
• Most assault cases involve unwanted touching or procedures without consent, rather than violent physical acts.
• Patients generally sign consent forms before procedures, but oral consent is legally binding and harder to prove.
• Patients must be informed of any procedure changes, and lack of consent can result in assault charges.

False Imprisonment

• Holding a patient against their will is false imprisonment, including using restraints without medical approval.

Defamation of Character

• Damaging someone's reputation by spreading untrue information is defamation of character, with subcategories slander (spoken) and libel (written).
• Spreading the truth, even unethically, is not defamation of character.

Invasion of Privacy

• Intrusion into someone's private life without medical cause is invasion of privacy, extending farther than HIPAA's Privacy Rule.
• Making public damaging information about an employee or patient in a healthcare setting can be considered invasion of privacy.

Fraud

• Deceitful practices that deprive someone of their rights can be considered fraud.
• Examples of fraud include false promises, upcoding, and insurance fraud.
• Upcoding involves charging insurance companies for a higher-reimbursed procedure than what was performed. Individual therapy billed instead of group therapy is an example of upcoding, as individual sessions are typically reimbursed at a higher rate.
• Promising a guaranteed outcome is never assured because no outcome is ever guaranteed.

Embezzlement

• Using rightfully accessed property for one's own use, specifically an employee taking money from business accounts, is embezzlement.
• Embezzlement is not stealing due to the employee's legal access to the funds.

Unintentional Torts (Negligence)

• Negligence can occur in any field where a duty is owed.
• Licensed healthcare professionals are legally liable for their employment actions, and must uphold a standard of care determined by what other professionals would reasonably do in a similar situation.
• Duty, breach of duty, causation, and damages are the four necessary components to prove unintentional tort.
• Duty is established when a healthcare professional agrees to treat a patient.
• Breach of duty is the failure of a healthcare professional to act like any reasonable healthcare worker would given similar circumstances.
• Breaches fall under three different categories.

Breaches of Duty

• Misfeasance is a mistake.
• Nonfeasance is a failure to act.
• Malfeasance is negligence with mal-intent.
• Causation requires the injury to be closely related to the healthcare professional's negligence.
• The patient must prove that the healthcare professional's breach was the direct cause of the injury.
• It must be proven that no other circumstances could have caused the injury.
• Damages are the actual injuries caused by the defendant for which compensation is due.
• The doctrine of respondeat superior states that employers are responsible for their employees' actions, including training.

Res Ipsa Loquitur

• The plaintiff carries the burden of proof in unintentional tort cases.
• The burden of proof shifts to the defendant under the doctrine of res ipsa loquitur ("the thing speaks for itself") if the negligent act is obvious and the employee must prove their innocence
• Examples include amputation of the incorrect limb or sponges left in the body after surgery.
• Defenses in tort cases include denial, assumption of risk, comparative and contributory negligence, statute of limitations, and borrowed servant.

Defenses in Tort Cases

• Denial is the most used defense, claiming another explanation or cause for the damages.
• Assumption of risk is understanding that certain procedures can result in known injuries.
• Consent forms show that patients understand the risks involved.
• Contributory negligence means the patient or others are fully or partly responsible for the injury, meaning they cannot receive monetary compensation.
• Comparative negligence is similar, but allows the plaintiff to recover damages based on the amount of the defendant's fault relative to their own.
• Statutes of limitations determine the number of years a plaintiff has to file a negligence claim. They typically range from 3-7 years, and begin when the injury is discovered.
• The borrowed servant rule allows a facility to escape liability for temporary employees or medical professionals if the plaintiff sues regarding their actions.

Liability Insurance

• Liability insurance provides financial protection from claims arising from medical malpractice.
• Most healthcare providers need professional liability insurance.
• States generally require that physicians have liability insurance or work under a medical group's liability plan.
• Other healthcare professionals should check with their employers or obtain their own policy.
• Professional organizations sometimes offer liability insurance at a group rate.
• Healthcare professionals should protect their assets and standing by obtaining liability insurance, as mistakes can happen and lawsuits can occur regardless of actual guilt.

Scope of Practice

• Scope of practice includes your limitations, rules, regulations, and professional protocol within a field.
• Proper scope of practice is determined by a professional's specific skills and knowledge, as well as regulations set by their profession, state and the federal government.
• A medical office receptionist's responsibilities may include receiving patients, ensuring sign-in confidentiality, distributing information forms, and making appointments.
• An MOR should not perform duties of a medical assistant.
• Coworkers may assist each other if they are trained to perform the duties.
• The healthcare team in a clinic, hospital, etc, should work together to deliver the highest level of professionalism.

The PYTHON Principle

• The PYTHON principle is an easy way to posture yourself for prevention.

Components of the PYTHON Principle

• Protect Yourself by being aware of potential liabilities and following practices like obtaining consent forms before sending confidential information.
• Be honest with patients, coworkers, employers, and the legal system.
• Never promise results, as caring for people is complicated and outcomes are unpredictable.
• Observe and keep track of all observations will help prevent legal action.
• Proactive measures will prevent more legal issues that reactionary measures will fix.
• The healthcare professional must remember the welfare of the patient and to preform their duties within the scope of practice to avoid being the target of a lawsuit.