Chapter 3: Ethics and Law for the Medical Office
What three elements are necessary for a legal contract?
1. An agreement (meeting of the minds) between all parties to the contract. 2. Performance of a legal action (or in some cases refraining from any action). 3. Payment or consideration (a service).
Identify five duties of a health professional.
1. Doing no harm (nonmalfeasance) or at least doing more good than harm. 2. Doing the best possible (beneficence). 3. Being faithful to reasonable expectations (fidelity). 4. Being truthful (veracity). 5. Being fair (justice).
What four elements must be proved in order to prove liability for professional negligence (malpractice)?
1. There was a duty to the injured party (i.e., the person being sued had a responsibility to the injured party). 2. There was a failure to meet the duty (i.e., the person with the duty was derelict). 3. Damage or injury occurred. 4. The failure to meet the duty was the direct cause of the damage or injury.
What is a DNR order?
A DNR (Do Not Resuscitate) order is a written directive by the physician to refrain from resuscitating an individual who stops breathing or whose heart stops.
What is the difference between a living will and a health care proxy? Which is preferable?
A living will describes an individual's preferences related to treatment that might be provided in the case of serious illness or medical emergency, including resuscitation, use of a ventilator, and use of other measures to preserve life. A health care proxy names a specific individual to be responsible for making health care decisions if an individual becomes incapacitated and usually describes the individual's wishes in terms similar to those in a living will. A patient should be encouraged to prepare a document that contains as much information as possible and is also legally accepted in the state in which he or she resides. This may require the assistance of an attorney.
Differentiate among a malfeasance, a misfeasance, and a nonfeasance.
A malfeasance is a wrongful act (crime). A misfeasance is a legal act performed in an improper way. A nonfeasance is failing to act when action is indicated.
Describe what a mandated report is and give five examples of mandatory reporting for physicians.
A mandated report is a report that the physician must make whether the patient consents or not. Examples include reports of births and deaths, reports of certain communicable diseases, reports of injuries that may be a result of criminal activity, and possible abuse or neglect of children and elders.
Why and how should a medical assistant report the illegal or unsafe behavior of another health professional?
A medical assistant should report illegal or unsafe behavior of other health professionals because it can threaten the health and safety of patients. The first step is to notify the supervisor or person to whom the individual reports and keep a written record of the incident and the steps taken. If no action is taken, it may be necessary to report the incident to someone higher in the chain of command. If a medical assistant has followed up within the organization without resolution of the situation, it may be necessary to report to the appropriate government agency (in the case of a licensed professional).
What are two reasons for physicians to purchase professional liability insurance?
A physician should purchase professional liability insurance to provide financial protection against allegations of professional negligence by himself or herself when caring for patients and in casual situations, and also to protect against being sued for the negligence of an employee under the doctrine of respondeat superior.
Define the following terms: a. Stem cell research:
A stem cell is a type of cell that can mature into any type of adult cell. Research focuses on using this type of cell to treat diseases that destroy specific types of body tissue.
What is a subpoena and a subpoena duces tecum?
A subpoena is a court order that requires a witness to be present and testify. A subpoena duces tecum requires the presence of a piece of evidence such as a medical record.
When can an individual who is not yet 18 consent to medical treatment?
An individual under age 18 can become an emancipated minor and consent to all medical treatment upon entering the armed services, marrying, or obtaining a court order proving financial independence. In addition, minors can usually consent to treatment for alcohol or substance abuse, sexually transmitted diseases, and prenatal care. Depending on the state, they may also be able to consent for additional types of treatment.
Differentiate between an intentional tort and an unintentional tort.
An intentional tort is an injury or wrong in which the individual who is responsible knows (or should know) the consequences of his or her action. It does not include breach of contract. For example, if a medical assistant locks an examination room door to prevent a patient from leaving the office without having a legal right to do so, it would be considered false imprisonment. The medical assistant might be liable for psychological stress and/or loss of income due to missing work. An unintentional tort is an injury or wrong that occurs because of a mistake or unintended consequences of an act. The most common unintentional tort is negligence.
Briefly describe the following three types of law: b. Civil law:
Civil law regulates relationships between individuals or groups and requires restitution for injury or damage to individuals, groups, or property. It is considered private law.
Define the following terms: c. Cloning:
Cloning uses scientific techniques to artificially make exact copies of cells, tissues, or entire organisms.
What are two issues that create conflict within society related to reproductive issues?
Conflict surrounds issues of abortion and contraception. The abortion issue has been divisive in the United States ever since the U.S. Supreme Court decision upheld a woman's right to abortion in 1973 (Roe v. Wade). Contraception, the use of which is generally accepted as an individual decision, has provoked controversy with the legalization of the "morning after" pill ("Plan B"). This has been controversial for two reasons. Although its use is supposed to be limited to women older than age 18, there is concern that it will be used by younger women. In addition, some individuals consider it abortion rather than contraception and therefore unethical.
Briefly describe the following three types of law: c. Contract law:
Contract law regulates agreements between individuals and groups so that parties follow through on what they have agreed to. It is a division of civil law.
What are controlled substances, and what law regulates their use?
Controlled substances are drugs with a potential for addiction and/or abuse. They are regulated by the Controlled Substances Act of 1970.
Describe two classifications of crimes.
Crimes are classified as felonies (serious crimes) or misdemeanors (less serious crimes).
Briefly describe the following three types of law: a. Criminal law:
Criminal law regulates the relationship between an individual and society as a whole. Actions that threaten society are considered criminal and are punished as a deterrent. It is considered public law.
Identify three sources of beliefs about the rights and duties of individuals and society as a whole.
Ethical beliefs are usually derived from religious traditions, political documents such as the Declaration of Independence and the U.S. Constitution, and ethical theories developed by individual philosophers.
When does ethical conflict arise?
Ethical conflict arises when different segments of society hold different beliefs about what is right and wrong. These beliefs tend to be strong, especially when based on religious tradition.
Which types of health care facilities usually require a state license?
Facilities that require a state license include ambulatory surgery centers, blood banks, clinics, commercial independent laboratories, drug treatment centers, end-state renal disease centers, health departments, home health agencies, hospitals, intermediate-care facilities, nursing homes, physician office laboratories, and pregnancy counseling centers.
What are five recommended steps to make ethical decisions?
Five steps to make ethical decisions include gathering information, identifying conflicting values, determining the relative importance of conflicting claims, exploring alternatives, and choosing and justifying one alternative.
Define the following terms: d. Gene therapy:
Gene therapy refers to treatments in which patients are given new genes or parts of genes that have been synthesized in the laboratory from existing genetic material, both human and nonhuman.
Define the following terms: b. Genetic engineering:
Genetic engineering is making, altering, or repairing genetic material.
What are grounds for suspending or revoking a license to practice medicine?
Grounds to suspend or revoke a license to practice medicine include unprofessional conduct, conviction of a crime, and physical or mental incapacity.
If a physician believes that a patient is going to initiate a lawsuit, how should he or she respond?
If a medical office receives a request for a patient's medical record from a lawyer or has another indication that a patient may be going to initiate a lawsuit, the physician who has cared for the patient should notify the company who provides his or her professional malpractice insurance.
Explain how an injury can result in both civil and criminal lawsuits.
If an individual acts with intent to hurt another individual or group, that action is considered criminal. The individual may be arrested and tried for a crime. In the course of the action, injury or damage may occur to a person or property. The injured party can initiate a civil lawsuit to obtain restitution (payment) for the damage or injury that occurred.
Give examples of each of the following types of consent. a. Implied:
Implied consent occurs when a patient's actions indicate consent, for example if the patient rolls up the sleeve before phlebotomy.
What are five measures to prevent misuse of prescription forms and tampering with written prescriptions?
Measures to prevent misuse of prescription forms and tampering with prescriptions include storing prescriptions in a safe place, writing out amounts in words, using prescription pads only for medications (not notes or memos), signing prescriptions only after they have been written, and using tamper-resistant pads.
Differentiate between mediation and arbitration.
Mediation uses a facilitator to help two disputing parties settle their differences. If mediation fails, either may seek recourse through the court system. In arbitration, a neutral party settles a dispute. If the arbitration is binding, both parties have agreed to accept the decision as final. If the arbitration is nonbinding, either party may proceed with a court case.
What are the two elements of state medical practice acts?
Medical practice acts generally contain the following two elements: definition of the practice of medicine and limitation to qualified practitioners by licensure.
Identify four groups of people who cannot legally be party to a contract or give informed consent.
Mentally ill or retarded adults, individuals under age 18 (except in certain circumstances), individuals impaired by alcohol or medication, individuals under duress or afraid of retaliation, and individuals who have been found to be legally incompetent cannot legally be party to a contract or give informed consent.
What are four other rules included in HIPAA?
Other rules included in HIPAA are regulation of health insurance availability and coverage, the Transaction and Code Set Rule, the Security Rule, the Unique Identifier Rule (which establishes a national provider identification number), and the Enforcement Rule.
Describe the difference between personal ethics and professional ethics, and explain which should take priority.
Personal ethics include personal beliefs and morals, whereas professional ethics are the beliefs about right and wrong behavior of the profession as a whole. Professional ethics are usually formulated by a professional organization and include adhering to state and federal laws. Professional ethics take priority over personal beliefs, although in general, an individual is not required to participate in activities, which he or she believes are ethically unjustifiable (for example, assisting in abortions).
What is the difference between physician-assisted suicide and euthanasia? Is either legal in the United States?
Physician-assisted suicide refers to actions whereby a physician provides a patient with the means to take his or her own life, such as prescribing a medication that might be lethal if a large enough dose is taken. It is legal only in Oregon, Washington, and Montana with many provisions to prevent abuse. Euthanasia refers to measures to end the life of an individual with a terminal illness or condition. It is not legal in any state.
What is the relationship between law and ethics?
Society attempts to require ethical behavior by passing laws. This is an imperfect measure, because all parts of society do not agree about what is or is not ethical. In addition, some actions that are considered unethical do not lend themselves to legal requirements. Pressure from social groups encourages legislators to change the law to conform to the beliefs of that group.
What is the current legal position with respect to stem cell research related to federal legislation?
Stem cell research is legal, and federal funding can be obtained for responsible, scientifically worth stem cell research, including embryonic stem cell research.
What are two examples of measures to protect the health of employees in the medical office?
The Bloodborne Pathogen Standard helps prevent needlestick injuries and makes employers responsible for care if an employee is exposed to bloodborne pathogens. The Standard for Occupational Exposure to Hazardous Chemicals in the Laboratory identifies regulations to help prevent injury and train employees. It also requires access to material safety data sheets (MSDSs) for all chemicals to which an employee might be exposed.
Name two organizations that provide voluntary accreditation for physician's offices.
The Joint Commission and the Accreditation Association for Ambulatory Health Care are two agencies that provide voluntary accreditation for physician offices.
What organization was created by the Health and Safety Act of 1970 to protect employees in the workplace?
The Occupational Safety and Health Administration (OSHA) was created by the Health and Safety Act of 1970.
What are the general provisions of the Patient Self-Determination Act of 1990?
The Patient Self-Determination Act of 1990 requires hospitals and nursing homes to inform patients of their right to make known their wishes regarding health care and treatment in advance in case they later become unable to express them. An advance directive, such as a living will or health care proxy, is a vehicle to preserve specific preferences in writing as guidance for others who may have to make treatment decisions.
What does the doctrine of res ipsa loquitur refer to?
The doctrine of res ipsa loquitur is used when the plaintiff in a malpractice lawsuit was unconscious or under anesthesia at the time the injury occurred. It assumes that the type of injury could have occurred only if someone were negligent. An example is an operation on the wrong patient.
Describe the medical assistant's ethical responsibility related to patient care in the medical office.
The medical assistant has an ethical responsibility to work with the physician to provide health care. He or she cannot withhold information from the physician related to the patient's disease or condition and also cannot suggest to the patient that the physician's plan of care is inappropriate or invalid.
How does the medical assistant function as a patient advocate?
The medical assistant intercedes on behalf of patients when he or she identifies unmet patient needs for which a remedy can be suggested. The medical assistant might provide information about community resources to a patient or suggest appropriate community referrals to the physician. The medical assistant might also follow up with the patient's insurance company to obtain payment. In addition, the medical assistant works to protect patient rights.
What is the medical assistant's role in obtaining a signature on a consent form?
The medical assistant obtains the patient's signature and signs the consent form as a witness. If the medical assistant believes that the patient does not really understand what he or she is signing, the medical assistant should ask the physician to give a further explanation to the patient.
When can a physician terminate care to a patient?
The physician can terminate care to patients for personal reasons, including moving, retiring, and closing the practice. The physician can also terminate care to individual patients who regularly fail to keep appointments or fail to follow medical advice.
How should the physician notify the patient that he or she is terminating care? Why?
The physician should notify the patient in writing that he or she is terminating care and give the specific date on which care will end. If care of the patient is terminated for the patient's failure to keep appointments or follow medical advice, the letter should be sent via certified mail with return receipt requested to prove that the patient was notified.
Identify how the physician-patient relationship meets the definition of a contract.
The physician-patient relationship is considered a contract because the physician performs a service for which the patient is required to pay. The physician-patient relationship implies a long-term relationship (i.e., the physician will continue to care for the patient until the patient's illness or condition has resolved or until responsibility for the patient's care has been transferred to another physician).
Identify four reasons that medical assisting students can benefit from studying about ethics and bioethics.
The study of ethics can help medical assistants develop the analytic skills to assess complex problems and justify solutions. It can help increase a sense of social responsibility and foster informed choices related to biomedical technology. Finally, it can help medical assistants make informed choices in the future, as society is confronted with situations with which individuals have no previous experience.
What does the term standard of care mean?
The term standard of care is used to describe the care expected from a health professional. All individuals are held to the standard of a "reasonably prudent person" and are responsible for injuries to other people or property that occur if they do not meet this standard. Health professionals are held to a higher standard, one that corresponds to their training. In general, a health professional is required to meet the standard of others of the same profession or level of education and training in the same geographic area.
Most states have a process to file a complaint against physicians whose illegal or unsafe activities threaten the health and safety of patients or others. What is the process in your state?
This is usually handled through the state medical board or other state agency that licenses physicians. This agency provides information about the process and the subsequent investigation. It also provides a complaint form to report the complaint.
What is the purpose of the Privacy Rule of the Health Insurance Portability and Accountability Act (HIPAA) of 1996?
Under HIPAA, the Privacy Rule defines how an individual's health information must be protected. New patients must be given the opportunity to read a description of the privacy practices of a medical office and must sign a document indicating that they have been given this information.
Give examples of each of the following types of consent. b. Verbal:
Verbal consent occurs when an action is discussed and agreed upon. A teenager says that she will to watch a woman's children for 3 hours for $7 an hour.
Why is informed consent usually verified by having the patient sign a consent form?
When an invasive procedure will be performed, a written signature is usually obtained to validate that the procedure was explained to the patient and that the patient understood the possible consequences both of having or choosing not to have the procedure.
Give examples of each of the following types of consent. c. Written:
Written consent involves a person reading and signing a consent form. It is called informed consent when the form includes information about risks and benefits, side effects and implications if the procedure is not performed.
What employee rights are protected by the following laws? a. Equal Opportunity Employment laws:
a. Equal Opportunity Employment laws: Equal opportunity employment laws prevent discrimination in hiring and firing employees based on race, religion, national origin, sex, or age.
Describe each of the following crimes and identify how each might occur in relation to the medical office. a. Manslaughter or criminal negligence:
a. Manslaughter or criminal negligence: If the treatment a patient receives is considered highly inappropriate and the patient dies, a charge of manslaughter or criminal negligence might be brought. For example, a patient with pneumonia is sent home and told to take medication to reduce his or her fever and later dies of pneumonia.
Describe the following tort defenses: a. Privilege:
a. Privilege: The defense of privilege is used when the defendant in a tort lawsuit believes that he or she had permission for the action in dispute. For example, a patient put in soft or leather restraints according to institutional policy would not be successful in a lawsuit for false imprisonment.
Describe briefly what is included in each of the following ethical rights: a. Right to life:
a. Right to life: The right to life includes beliefs about abortion and end-of-life care. Traditionally physicians and other health professionals have no right to end life, even in situations of severe suffering with no hope of improvement.
What employee rights are protected by the following laws? b. Americans with Disabilities Act and Amendments:
b. Americans with Disabilities Act and Amendments: In addition to specifying how public buildings must be made accessible to individuals with handicaps, the Americans with Disabilities Act requires employers to make "reasonable accommodations" for disabled individuals who are otherwise qualified to perform the tasks of a certain job. The Americans with Disabilities Amendments make it easier for an individual to establish disability.
Describe the following tort defenses: b. Consent:
b. Consent: If an individual consents to an act, the defendant would not have committed a tort. For example, it is not a battery to give an injection to a patient who consents to the injection.
Describe each of the following crimes and identify how each might occur in relation to the medical office. b. Embezzlement:
b. Embezzlement: Appropriating funds from an employer or client is called embezzlement. In the medical office, an employee might create a scheme to deposit patient payments into a personal account instead of the office checking account.
Describe briefly what is included in each of the following ethical rights: b. Right to privacy:
b. Right to privacy: The right to privacy has been used as a justification for a woman's right to choose abortion, as well as patients' rights to confidentiality of their medical history and medical care.
What employee rights are protected by the following laws? c. Family and Medical Leave Act:
c. Family and Medical Leave Act: Under the Family and Medical Leave Act, individuals working for an organization with more than 50 employees are entitled to 12 weeks of unpaid leave to accommodate a serious medical problem of a family member or the birth or adoption of a child.
Describe each of the following crimes and identify how each might occur in relation to the medical office. c. Fraud:
c. Fraud: Fraud is a deliberate deception for financial gain. Improper billing, including billing for patients who were never seen or services that were never provided, is fraudulent.
Describe briefly what is included in each of the following ethical rights: c. Right to autonomy:
c. Right to autonomy: An individual has the right to make decisions about his or her health care. This includes a right to understand the implications of any proposed treatment requiring informed consent. The individual can also express his or her wishes for care in the future if he or she becomes incapacitated.
Describe the following tort defenses: c. Self-defense:
c. Self-defense: An individual is allowed to defend him or herself against a threat or attack. In addition, one is allowed to defend other individuals who are at risk.
Describe the following tort defenses: d. Expiration of the statute of limitations:
d. Expiration of the statute of limitations: The law in each state determines the time frame within which a lawsuit must be initiated. This is called the statute of limitations.
What employee rights are protected by the following laws? d. Fair Labor Standards Act:
d. Fair Labor Standards Act: The Fair Labor Standards Act regulates the minimum wage and requires overtime pay for hours worked beyond 40 hours in a given week. Salaried employees are exempt from the requirement for overtime pay.
Describe briefly what is included in each of the following ethical rights: d. Right to the means to sustain life:
d. Right to the means to sustain life: The belief that all people have the right to the means to sustain life requires that at least some health care to be provided without charge for those who cannot pay. Society continues to grapple with the problems of equitable distribution of available resources.
Describe the following tort defenses: e. Contributory negligence:
e. Contributory negligence: In a state that recognizes contributory negligence, any action by the plaintiff that contributes to an injury is a complete defense against malpractice. For example, if a patient does not keep follow-up appointments after surgery and experiences a wound infection, that would be considered contributory negligence.
What employee rights are protected by the following laws? e. Employee Retirement Income Security Act:
e. Employee Retirement Income Security Act: The Employee Retirement Income Security Act regulates employee benefit plans, including health insurance and pension plans.
Describe the following tort defenses: f. Comparative negligence:
f. Comparative negligence: If a state recognizes comparative negligence, when the plaintiff contributes to an injury, the percentage of the plaintiff's fault is estimated and the defendant will be liable for the remaining percentage of the damage or injury.
Describe the following tort defenses: g. Assumption of risk:
g. Assumption of risk: When an individual fails to follow medical advice, he or she assumes the risk for any injury that follows as a consequence. For example, if a patient refuses to have the side rails up when in the hospital, the hospital would not be liable for injury if the patient falls out of bed.