Chapter 26: Medical Law PDF

Chapter 26 Medical Law  Objectives (1 of 3)  Differentiate among the various types of law.  Outline how the standard of care is established for radiologic technologists.  Discuss the concept of tortious conduct and causes of action that may arise from the behavior...

Chapter 26 Medical Law  Objectives (1 of 3)  Differentiate among the various types of law.  Outline how the standard of care is established for radiologic technologists.  Discuss the concept of tortious conduct and causes of action that may arise from the behavior of a health care practitioner.  Objectives (2 of 3)  Argue the importance of privacy of records and the relationship between privacy of records and patient confidentiality issues.  Explain negligence and the four elements necessary to meet the burden of proof in a medical negligence claim.  Objectives (3 of 3)  Explain the legal theory of res ipsa loquitur and how an attorney may use it in a claim of medical negligence.  Illustrate how a hospital may be liable under the doctrine of respondeat superior.  Justify the need for informed consent.  Outline the information a patient must have before an informed consent may be given.  Laws The body of rules, regulations, and guidelines that govern conduct in society to protect the health, safety, and welfare of its citizens Occasionally, laws and medicine conflict with each other.  Relationship between Patients and Health Care Practitioners Defined in 1914 by a precedent-setting case, Schloendorf v. Society of New York Hospital “Every human being of adult years and sound mind has a right to determine what shall be done with his own body, and a surgeon who performs an operation without his patient’s consent commits an assault, for which he is liable in damages.”  Doctrine of Patient–Provider Relationship  Protects individual autonomy  Protects patient’s status as a human being  Avoids fraud and duress  Encourages health care practitioners to consider their decisions carefully  Fosters rational decision making by the patient  Involves the public in medicine  Types of Law  Constitutional  Legislative o Administrative rules o Regulations o Ordinances  Case Law o Derived from the Common Law of England o Laws determined on a case-by-case basis  Contract Law  Characteristics of Law (1 of 2)  Laws reflect the values of a society.  Laws exist so that the rights of an individual or group cannot be encroached on by another individual or group.  Laws should remain dynamic when appropriate to reflect the dynamic nature of societies.  Characteristics of Law (2 of 2)  Laws must be equal to all without discrimination.  Law is based on what a reasonable and prudent person would do in similar circumstances.  All individuals have basic rights and responsibilities.  Standard of Care  The degree of skill (proficiency), knowledge, and care ordinarily possessed and employed by members in good standing within the medical profession  Ever-changing as technology improves  Judged against “reasonable and prudent” actions under similar circumstances  Components of Standard of Care outlined by the profession  American Society of Radiologic Technologists  Practice standards for medical imaging and radiation therapy.  Outline the performance standards of the medical imaging profession, at a minimum.  It is imperative that imaging professionals become competent in the knowledge and application of these standards.  Found in Appendix A in text  Causes of Legal Action  Torts  Assault  Battery Be very careful of your  False imprisonment use of social media technologies, regarding  Defamation work, patients, and o Slander o Involves spoken word colleagues!!! o Libel o Involves written word  Fraud  Torts  Patients claim that they have been wronged or have sustained some injury, other than a breach of contract, for which they believe cause exists for an action for damages.  Comes from a violation of a duty imposed by general law on all persons involved in a transaction or situation  A breach of duty must occur to warrant tort action.  Assault  An assault claim may arise when a patient believes he or she has been threatened in such a way that reason to fear or to expect immediate bodily harm exists.  Assault does not require physical contact.  Assault may only be verbal, but if patient perceives possible harm by comments, assault can be present.  Battery  Battery may occur even if no injury arises from unwarranted patient contact.  Any unlawful touching may constitute battery if the patient thinks that the technologist has touched him or her in an offensive way. o When positioning patients and using palpation, get the patient’s permission and use professional palpation techniques. o Improper positioning methods and rough handling can warrant a charge of battery.  False Imprisonment  False imprisonment arises when a person is restrained or believes that he or she is being restrained against his or her will.  The individual must be aware of the confinement and have no reasonable means of escape.  With senile, pediatric, or other incompetent patients, obtaining consent to restrain or immobilize from someone authorized to give consent is important.  Understand your responsibilities regarding false imprisonment.  Defamation  Slander  Libel  Be aware of social media sites and the risk of disclosure of confidential patient information, which can be viewed as harmful to patient.  Fraud  Fraud is generally defined as a willful and intentional misrepresentation of facts that may cause harm to an individual or result in loss of an individual right or property.  Fraudulent cases require three sources of proof: o An untrue statement, known to be untrue by the party making it, was made so as to mislead. o The injured party relied on the statement. o Damages were incurred as a result of the reliance.  Health Information Privacy  Patient Care Bill of Rights clearly defines that health records are to be held private and confidential.  Health records are the property of the provider.  Health information in those records is the property of the patient.  In the new world of electronic imaging, it is critical that images are kept accurate, secure, and confidential.  HIPAA Health Insurance Portability and Accountability Act 1996  Negligence  Negligence is a failure to use such care as a reasonably prudent, comparable person would use under similar circumstances.  Basis for comparison is premised on the standard of a “reasonable, prudent person under like circumstance.”  Negligence Proofs Injurious or unprofessional treatment of a patient including neglectful actions Duty Breach of duty Causation Damage As a result of the Compensable Deviation from breach injury duty  Legal Doctrines  Respondeat superior o “The master speaks for the servant.”  Corporate liability o Requires the health care provider to be responsible for the quality of care provided o Malfunctioning radiology equipment that is knowingly used on a patient, is a potential liability  Res ipsa loquitur o “The thing speaks for itself.”  Informed Consent (1 of 2)  Premised on the basis of TRUST  Required for any interventional procedure  Assumes the provider is acting in the best interest of the patient and in a manner that is consistent with Standards of Care  Patients have the right to make informed decisions regarding their care.  Not typically required for simple, routine, noninvasive, medical imaging studies  Implied consent generally used for simple procedures  Informed Consent (2 of 2)  Information provided in lay language  Provided in patient’s primary language  Patient autonomy must always be respected.  Consent form signed and witnessed by disinterested third party.  Not to be confused with Implied Consent  The Principle of Autonomy  Right to information and self-determination  Free and informed consent  Free will and accord—intentional participation in treatment  Respect and dignity maintained The patient’s autonomy should always be considered when performing diagnostic or therapeutic procedures.  Informed Consent Form (1 of 2)  Authorization clause to permit the physician or other health care professional to perform the examination  Disclosure clause to explain the procedure, its risks and benefits, and possible alternatives to the procedure  Anesthesia clause if required  Informed Consent Form (2 of 2)  No-guarantee clause for therapeutic procedures  Tissue-disposal clause if the removal of tissue may be necessary  Patient understanding clause; usually states that all the information contained in the consent form has been carefully explained to the patient  Signature clause; calls for the signature of the patient as well as that of a witness  Conclusion (1 of 2)  Radiologic sciences professionals are legally liable for their actions in the daily performance of diagnostic procedures and patient management.  Professionals have a responsibility to understand and practice the Standard of Care of the profession.  Conclusion (2 of 2)  Professionals must respect patient autonomy at all times.  A patient’s health information must be kept confidential.  Professionally appropriate behavior is premised on trust of the patient and a willingness to “do no harm, and always do good.”