Chapter 9-10

Chapter 10 Review

1.)The medical profession has long subscribed to a body of ethical statements developed primarily for the benefit of the patient. -Hippocratic Oath dates back to 400 BC. -Modified version of the Hippocratic Oath has been used by such medical schools as Johns Hopkins, Baylor College of Medicine, Tufts University School of Medicine. -American Medical Association developed its own code of ethical conduct for physicians. 2. Law and ethics interweave in patient care. -Hippocratic Oath and AMA Code of Ethics were violated when the physicians in Scripps Clinic v. Superior Ct. terminated a patient's care before ensuring the patient had continuing medical care. -Compassion, trust, justice, and respect for patient privacy are all ethical principles and values that are intertwined with law. 3. Physician negligence often involves one or more of the following: -Patient assessments -Medical diagnosis -Treatment

Warning Patients about Potential for Overdose

A Pennsylvania court held that a pharmacy failed to exercise due care and diligence because the patient was not warned about the maximum dosage of a medication.[83] This failure resulted in an overdose, causing the patient permanent injuries. Expert testimony focused on the fact that a pharmacist who receives inadequate instructions as to the maximum recommended dosage of a medication has a duty to ascertain whether the patient is aware of the limitations concerning the use of the drug or, alternatively, to contact the prescribing physician regarding the inadequacy of the prescription.

Nursing Assistants

A nursing assistant is an aide who has been certified and trained to assist patients with activities of daily living. The nursing assistant provides basic nursing care to non-acutely ill patients and assists in the maintenance of a safe and clean environment under the direction and supervision of a registered nurse or licensed practical nurse. The nursing assistant helps with positioning, turning, and lifting patients and performs a variety of tests and treatments. The nursing assistant establishes and maintains interpersonal relationships with patients and other hospital personnel while ensuring confidentiality of patient information. Common areas of negligence for nursing assistants include failure to follow or improperly performing procedures; failure to assist patients and prevent falls; unsafe placement or positioning of equipment; failure to maintain equipment properly; failure to observe a patient and take vital signs at appropriate intervals; failure to chart pertinent information regarding a patient's changing condition (e.g., vital signs); and failure to respond to a patient's call for help (e.g., call bells).

Medicating the Wrong Patient

A patient's identification bracelet must be checked before administering any medication. To ensure that the patient's identity corresponds to the name on the patient's bracelet, the nurse should address the patient by name when approaching the patient's bedside to administer any medication. Should a patient unwittingly be administered another patient's medication, the attending physician should be notified, and appropriate documentation placed in the patient's chart.

Paramedic

A paramedic is a healthcare professional, predominantly in the pre-hospital and out-of-hospital environment, and working mainly as part of Emergency Medical Services (EMS), such as on an ambulance. A paramedic is an allied health professional whose primary focus is to provide advanced emergency medical care for critical and emergent patients who access the emergency medical system. This individual possesses the complex knowledge and skills necessary to provide patient care and transportation. The minimum skill sets of a paramedic include: airway and breathing, performance of endotracheal intubation, performance of percutaneous cricothyrotomy, decompression of the pleural space, performance of gastric decompression, pharmacological interventions, insertion of an intraosseous cannula, enteral and parenteral administration of approved prescription medications, accessing indwelling catheters and implanted central IV ports for fluid and medication administration, administration of medications by IV infusion, maintaining an infusion of blood or blood products, percutaneous means to access via needle-puncture, medical/cardiac care including performance of cardioversion, manual defibrillation, and transcutaneous pacing. Many states have enacted legislation that provides civil immunity to paramedics who render emergency lifesaving services. The Pennsylvania Supreme Court, for example, in Morena v. South Hills Health Systems,[12] held that paramedics were not negligent in transporting a victim of a shooting to the nearest available hospital, rather than to another hospital located 5 or 6 miles farther away where a thoracic surgeon was present. The paramedics were not capable, in a medical sense, of accurately diagnosing the extent of the decedent's injury. Except for the children's center and the burn center, no emergency trauma centers are specifically designated for the treatment of particular injuries. It should be noted that immunity to liability does not, however, extend to negligent acts. The plaintiff, for example, in Riffe v. Vereb Ambulance Service, Inc.,[13] alleged that, while responding to an emergency call an emergency medical technician began administering lidocaine to the patient, as ordered over the telephone by the medical command physician at the defendant hospital. While en route to the hospital, the patient was administered 44 times the normal dosage of lidocaine. Consequently, normal heart function was not restored, and the patient was pronounced dead at the hospital shortly thereafter. At trial, the superior court held that the liability of medical technicians could not be imputed to the hospital. The court noted the practical impossibility of the hospital carrying ultimate responsibility for the quality of care and treatment given patients by emergency medical services.

Surgeons and Medical Center Breach Trust

A young woman went to a medical center for removal of a benign fibroid tumor in her uterus, an outpatient procedure. By the end of the day, she was dead. The actions of the surgeons and medical center in this case clearly place the spotlight on trust and the ability of healthcare organizations to competently monitor their professional staff. The community of patients across the nation trust that the physicians appointed and credentialed by hospitals are closely monitored and privileged strictly according to their proven capabilities. This trust must not falter.

Nurse Anesthetist

Administration of anesthesia by a nurse anesthetist requires special training and certification. Nurse-administered anesthesia was the first expanded role for nurses requiring certification. Oversight and availability of an anesthesiologist are required by most organizations. The major risks for nurse anesthetists include improper placement of an airway, failure to recognize significant changes in a patient's condition, and the improper use of anesthetics (e.g., wrong anesthetic, wrong dose, wrong route).

Aggravation of Patient's Condition

Aggravation of a preexisting condition through negligence can result in a physician being liable for malpractice. If the original injury is aggravated by treatment or the failure to treat, liability can be imposed for injuries suffered as a result of the aggravation of the patient's condition.

Advanced Practice Nurse

An advanced practice registered nurse (APRN) is a registered nurse having education beyond that of a registered nurse. APRNs include nurse practitioners, clinical nurse specialists, nurse anesthetists, and nurse midwives. They often play a critical role as primary care providers for patients who live in remote areas or have difficulty obtaining a primary care physician. APRNs are certified by a nationally recognized professional organization in their nursing specialty or meet other criteria established by a board of nursing that sets education, training, and experience requirements.

Surgery

As noted in the preceding news clipping, surgical instruments inadvertently left in patients are reported by hospitals accredited by The Joint Commission. The various states also require the reporting of surgical errors, such as wrong patient, wrong surgery, and wrong site. Wrong-site surgical mistakes have multiple causes, including draping the wrong surgical site, marking the wrong surgical site, and failing to mark the surgical site as required by hospital policy.

Before taking any action in situations involving ethical dilemmas, answer the following questions: - What solution is most likely to build trust among those involved? - What solution fits best into the company's value system? - What solution will pass the morning-after, frontpage, mirror, role reversal, and common sense tests? - What solution is most likely to enhance the organization's integrity? - What solution is the most responsible option?

Character • What sort person should you strive to become? • What are your core virtues?

Types of fraud

Claims for services never rendered • "Upcoding" - Some providers see nothing wrong with false statements to justify service to patients need service and cannot afford it.

Compassionate Care

Compassion is a moral value hoped for in all caregivers. Those who truly possess it will have a more rewarding career and at the end of life be able to say, "I have not only lived, but I have lived for something, it was worthwhile, I had a reason for living and a reason for leaving. I led a purpose-fulfilled life." The following news clipping succinctly illustrates how one physician's experience when faced with a dying patient can spring forth compassion and a time for reflection. It is important for not only the physician but also the office staff that works with patients to show compassion from the time they walk in the office door until the time they leave, as the following Reality Check illustrates.

Those patients who are disgruntled with the long wait times to see their doctors believe that they should be reimbursed when the doctor is late. Their argument is based on the late fees that doctors' offices charge for patients who don't show up for their appointments and fail to call 24 hours ahead of time. Why, the patient argues, is the doctor's time more important than the patient's? The Geisinger Health System, which serves almost 3 million people in Pennsylvania and New Jersey, acquiesces to that logic. The new CEO there put a reimbursement system into place two years ago that refunds money to patients who file reports of a poor healthcare experience. "Requests for refunds have not shot up and have held steady at about $500,000.00 for each of the last two years."[47] The time has come to put Taylor's philosophy to rest, at least in healthcare settings. Patients must come before the system.

Conduct a thorough assessment/history and physical examination that includes a review of all body systems. Do not be dismissive as to the patient's thoughts as to the cause of his or her ailments. Develop a problems list and comprehensive treatment plan that addresses the patient's problems. Provide sufficient time and care to each patient. Take the time to explain treatment plans and follow-up care to the patient, his or her family, and other professionals who are caring for your patient. Request consultations when indicated and refer if necessary. Closely monitor the patient's progress and, as necessary, make adjustments to the treatment plan as the patient's condition warrants. Maintain timely, legible, complete, and accurate records. Do not make erasures. Do not guarantee treatment outcome. Provide for cross-coverage during days off. Do not overextend your practice. Avoid prescribing over the telephone. Do not become careless because you know the patient. Seek the advice of counsel should you suspect the possibility of a malpractice claim. Take Care of Yourself Doctor: We Need You In thoughts and in the heart are the memories of the hundreds of thousands of physicians who daily do the right thing well and yet their best efforts fail and would have failed no matter who was the intervening physician.

denistry

Dentists are expected to respect patient rights and to avoid harm to their patients. They are expected to treat patients within their scope of practice. Such did not occur in the following cases.

Ethical Decision-making Process 2. Identify the options: • Typically characterized as a creative step • Encumbered and degraded by premature evaluation

Ethical Decision-making Process 3. Evaluate the options - Use the five PLUSS questions for each. 4. Select the optimal option 5. Implement the decision - Until the decision is implemented nothing happens 6. Evaluate the outcome - Examine the consequences (intended and unintended) of the decision. - Once again apply the 5 PLUSS questions.

Generic decision-making process 1. Define the situation 2. Identify the options 3. Evaluate the options 4. Select the optimal option 5. Implement the decision 6. Evaluate the outcome

Ethical decision-making process 1. Define the situation using the 5points of the ethics spectrum • P = Policy and procedures - Are there policies and procedures that I should consider in this situation? • L = Law and regulation - Are there laws and regulations that I should consider in this situation? • U = Universal organizational values - What organizational values apply to all situations and decision makers? • S = Self - What guidance do my personal values provide in this case? • S = Society - How do community/society values and expectations apply to this situation?

Common Rationalizations • "It's not really illegal or immoral." • "It's in my (or the organization's) best interest." • "No one will find out." • "Since it helps the organization, the organization will condone it and protect me."

Ethics Morality Conscience Legality Trust Values Responsibility Integrity

Marks v. Mandel Case

Extensive trial testimony proved that the local and national standard for on call systems is to have a specialist actually attending to the patient within thirty minutes of the call to the physician. Palmetto General had a published policy which adopted this standard. In the case at bar, however, the fact that a thoracic surgeon eventually attended to Marks was a matter of coincidence and not a result of the on-call system. The system failed. A jury should decide whether the failure was a breach of the standard of care owed to Michael Marks.[64]

Failure to Provide Follow-up care

Failure to provide follow-up care can result in a lawsuit if such failure results in injury to a patient. In Truan v. Smith,[43] the Tennessee Supreme Court entered judgment in favor of the plaintiffs, who had brought action against a treating physician for damages alleged to have been the result of malpractice by the physician in the examination, diagnosis, and treatment of breast cancer. In January or February of 1974, the patient noticed a change in the size and firmness of her left breast, which she attributed to an implant. She later noticed discoloration and pain on pressure. While being examined by the defendant on March 25, 1974, for another ailment, the patient brought her symptoms to the physician's attention but received no significant response, and the physician made no examination of the breast at that time. The patient brought her symptoms to the attention of her physician for the second time on May 6, 1974. She had been advised by the defendant to observe her left breast for 30 days for a change in symptoms, which at the time of the examination included discomfort, discoloration, numbness, and sharp pain. She was given an appointment for 1 month later. The patient, on the morning of her appointment, June 3, 1974, called the physician's office and informed the nurse that her symptoms had not changed and that she would like to know if she should keep her appointment. The nurse indicated that she would pass on her message to the physician. The patient assumed she would be called back if it was necessary to see the physician. By late June, the symptoms became more acute, and the patient made an appointment to see the defendant physician on July 8, 1974. The patient also was scheduled to see a specialist on July 10, 1974, at which time she was admitted to the hospital and was diagnosed as having a malignant mass. A radical mastectomy was performed. Expert witnesses expressed the opinion that the mass had been palpable seven months before the removal. When the defendant undertook to give the plaintiff a complete physical examination and embarked on a wait-and-see program as an aid in diagnosis, the physician should have followed up with his patient, who died before the conclusion of the trial. The state supreme court held that the evidence was sufficient to support a finding that the defendant was guilty of malpractice in failing to inform his patient that cancer was a possible cause of her complaints and in failing to make any effort to see his patient at the expiration of the observation period instituted by him.

Federal offense

False claims for Medicare/Medicaid is a felony • New federal offenses apply to private as well as public programs.

Sample Organizational Values People are important Learning is essential Timing is critical Integrity is paramount

Fraud and Abuse • False Claims • Kickbacks • Self-referral

False Claims

Gov't purchasing services vs. goods • Services provided to beneficiaries of programs rather than gov't agents • Services provides at thousands of remote sites • Complexity of prof services make it difficult to question quality and appropriateness • Personal and confidential nature prevents direct observation by the gov't at time of service. Problem!!! Gov't must rely on the word of the provider or written documentation.

Addressing complex ethical questions must consider: • State, federal, and local laws and regulations • Organizational policy and procedure • Organizational principles and values • Professional and individual values of the decision maker • Expectations and demands of the local community and a broader society

Guidance from Law and Regulation • Externally imposed rules • Addressing both • Practice of medicine • Business • Extends beyond the institution and individual to relationships with: - Suppliers - Agents - Patients and - Third party payers

Guidance from Policy and Procedure -Internally imposed - Institutional equivalent of of law and regulation • Specific expectations and requirements for those doing the work of the organization

Guidance from Organizational Principles and Values • Self-descriptive statements that define actual or aspirational standards of: - Personal - Professional - Organizational conduct • Business terms - "customer service/customer satisfaction" • Ethical terms - Integrity, honesty, and compassion

Guidance from Personal/Professional Values • A set of principles and values that describe standards of conduct • Professionally focused - Patient well-being and privacy • Integrity • Honesty • Compassion

Guidance from Society and Community • Some expectations of society are codified and others are not. - Respect for the patients and their family - Bedside manner - Responsiveness to unusual circumstances

Agency Personnel

Healthcare organizations are at risk for the negligent conduct of agency personnel. Because of this risk, it is important to ensure that agency workers have the necessary skills and competencies to carry out the duties and responsibilities assigned by the organization.

Helpful Advice for Caregivers

Helpful advice for caregivers includes the following: Break down the barriers between departments and work as a team. Abide by the ethical code of one's profession. Do not criticize the professional skills of others. Maintain complete medical records. Provide each patient with medical care comparable with national standards. Seek the aid of professional medical consultants when indicated. Obtain informed consent for diagnostic and therapeutic procedures. Inform the patient of the risks, benefits, and alternatives to proposed procedures. Practice the specialty in which you have been trained. Participate in continuing education programs. Keep patient information confidential. Check patient equipment regularly and monitor it for safe use. When terminating a professional relationship, give adequate written notice to the patient. Authenticate all telephone orders. Obtain a qualified substitute when you will be absent from your practice. Be a good listener and allow each patient sufficient time to express fears and anxieties. Develop and implement an interdisciplinary plan of care for each patient. Safely administer patient medications. Closely monitor each patient's response to treatment. Provide education and teaching to patients. Foster a sense of trust and feeling of significance. Communicate with the patient and other caregivers. Provide cost-effective care without sacrificing quality.

Timely Response May Require a Phone Call

Hospitals are not only required to care for emergency patients but also required to do so in a timely fashion. In Marks v. Mandel,[60] a Florida trial court was found to have erred in directing a verdict against the plaintiff. It was decided that the relevant inquiry in this case was whether the hospital and the supervisor should bear ultimate responsibility for failure of the specialty on-call system to function properly. Jury issues had been raised by evidence that the standard for on-call systems was to have a specialist attending the patient within a reasonable time of being called. Emergency rooms are aptly named and vital to public safety. There exists no other place to find immediate medical care. The dynamics that drive paying patients to a hospital's emergency departments are well known. A sudden, acute ailment or injury occurs: a child breaks his arm, an individual suffers a heart attack, an existing medical condition such as the flu or asthma worsens abruptly, a patient with diabetes lapses into a coma—any of these situations demand immediate medical attention at the nearest emergency department. The catchphrase in legal nomenclature "time is of the essence" takes on real meaning. Generally, one must choose the nearest emergency department, and after arrival, it would be a mistake to depart in hope of finding one that provides services through employees rather than independent contractors. The patient is there and must rely on the services available and agree to pay the premium charged for those services.[61] The public not only relies on the medical care rendered by emergency departments but also considers the hospital as a single entity providing all of its medical services. A set of commentators observed: The change in public reliance and public perceptions, as well as the regulations imposed on hospitals, has created an absolute duty for hospitals to provide competent medical care in their emergency departments. Given the cumulative public policies surrounding the operation of emergency departments and the legal requirement that hospitals provide emergency services, hospitals must be accountable in tort for the actions of caregivers working in their emergency departments.

Duty to Monitor Patient's Medications

In Baker v. Arbor Drugs, Inc.,[82] a Michigan court imposed a duty on a pharmacist to monitor a patient's medications. Three different prescriptions were prescribed by the same physician and filled at the same pharmacy. The pharmacy maintained a computer system that detected drug interactions. The pharmacy advertised to consumers that it could, through the use of a computer monitoring system, provide a medication profile of a customer for adverse drug reactions. Because the pharmacy advertised and used the computer system to monitor the medications of a customer, the pharmacist voluntarily assumed a duty of care to detect the harmful drug interaction that occurred.

Trust

Informed consent is predicated on trust, as well as a legal duty that requires the physician to disclose to the patient sufficient information to enable the patient to evaluate a proposed medical or surgical procedure before submitting to it. Informed consent requires that a patient have a full understanding of that to which he or she has consented. A physician's explanation of treatment options should take into consideration the patient's ability to understand the description of the risks of treatment and the probable consequences of each treatment. A patient who undergoes surgery in a teaching hospital may have a resident participating in the surgical procedures. Patients who prefer the attending to perform the surgery, often because of his or her reputation, should make an inquiry as to who will be performing the surgery. Informed consent forms in such settings should include the name(s) and role of the participating surgeon(s). Dr. James Rickert, an Indiana orthopedic surgeon, recommends in surgical cases that the patient ask the surgeon, "'Are you going to be in the room the entire time during my surgery?' ... If the doctor's not willing to say yes, vote with your feet." The American College of Surgeons in its Statements on Principles states: "Concurrent or simultaneous operations occur when the critical or key components of the procedures for which the primary attending surgeon is responsible are occurring all or in part at the same time. The critical or key components of an operation are determined by the primary attending surgeon. A primary attending surgeon's involvement in concurrent or simultaneous surgeries on two different patients in two different rooms is inappropriate." Informed consent should include what a reasonable person would consider material to his or her decision of whether or not to undergo treatment. The needs of each patient can vary depending on age, maturity, and mental status. Florida statute § 766.103 (3) (a) (2) notes that reasonable care on the part of a physician in obtaining informed consent for treatment consists of providing the patient with information sufficient to give a reasonable person a general understanding of the proposed procedure, the medically acceptable alternative procedures, and the substantial risks and hazards inherent in the proposed procedure that are recognized by other physicians in the same or similar community who perform similar procedures.[14] A physician is not under a duty to elucidate upon all the possible risks, but only those of a serious nature. Expert testimony is required to establish whether a reasonable physician in the community would make the pertinent disclosures under the same or similar circumstances. The ethical rationale underlying the doctrine of informed consent is firmly rooted in the notions of liberty and individual autonomy. Informed consent protects the basic right of the patients to make the ultimate informed decision regarding the course of treatment to which they knowledgeably consent. The focus of informed consent must involve the patient receiving informed consent as a result of active personal interaction with the physician. Consent forms should be used as a supplement to the oral disclosure of risks, benefits, and alternatives to the proposed procedure that a physician normally gives. Ideally, the consent should be the result of an active process of dialogue between the patient and physician. The physician who fails to actively participate in an agreed upon surgical procedure will surely be named in any lawsuit if the patient is injured due to such negligence. The surgeon, however, will not be held liable for participating in and exercising his or her best judgment in applying a course of treatment supported by a reputable and respected body of medical experts even if another body of expert medical opinion would favor a different course of treatment.

Failure to Follow-up on Test Results

It is the responsibility of the ordering caregiver to have an effective process in place to follow-up with patients on a timely basis as to each patient's clinical test results, such as laboratory and imaging studies (e.g., CT, MRI, and PET scans). A critical test result is defined as an abnormal test result that is considerably out of the normal range and needs to be urgently communicated to the patient. Follow-up care continues to be of concern in patient care settings such as physician offices, ambulatory care, walk-in-clinics, hospitals, nursing home facilities, and rehabilitative care settings. The failure to notify patients as to abnormal test results is not uncommon and can result in a missed or delayed diagnosis that can result in patient injury and even death. Such failures often lead to negligence suits and are difficult to defend in those cases where it is determined that the responsible caregiver failed to provide the patient with critical test results. A process for informing patients of both normal and abnormal test results is the responsibility of the ordering caregiver. Policies relating to responsibility, timing, and process of communication with the patient or appointed guardian requires implementation of a communication process that ensures appropriate notification and follow-up with the patient. Emergency rooms have unique environments in that the ordering physician may not necessarily be the same physician who receives the test result and has ultimate responsibility for treating the patient. In these environments, practitioners should take extra care to put a system in place to ensure that the physician who receives the result can appropriately communicate the result(s). Effective follow-up care demands effective communications in managing each patient's care needs, as noted in the following case. Managing test results should include telling the patient not only the bad news but also the good news. The patient in Downey v. University Internists of St. Louis, Inc. [44] entered the hospital in December of 1996 for heart bypass surgery. Two chest X-rays were taken during this hospitalization. The X-rays were interpreted as showing a lesion in the patient's left lung and that a neoplasm could not be completely ruled out. If clinically warranted, CT scanning could be performed. No further tests or evaluations were ordered in response to these reports. A jury found that the now-deceased patient had a material chance of surviving his cancer and that his chance of survival was lost as a result of the physician's negligence. The jury, however, did not award damages to compensate for the harm suffered. The Missouri Court of Appeals found that the verdict of no-damage award was inconsistent with the evidence and remanded the case for a new trial.

Darling v. Charleston Community Memorial Hospital

Landmark case • Governing body has a duty to - Evaluate - Counsel - Take action when necessary against unreasonable risk • 18 year old was improperly casted for leg fracture • The staff did little to intervene in a minor patient's complaints of leg pain after the leg was cast at the hospital and the patient was admitted. • Calls to the physician were not returned • Nurses failed to seek help from other sources (e.g., administrator, another physician). • Patient's leg had to be amputated 8 inches below the knee. • The following link is to a copy of the case at the LSU Law Center

Beauchamp and Childress (Four basic principles) Autonomy Free to make choices Nonmaleficence Do no harm Beneficence Doing good Justice Strive for equality in welfare and opportunity

Making ethical decisions Edmund Erde • A methodology 1. Characterize the dilemma as fully as possible 2. Keeping the nature of morality in mind, discard those constituents that arise as a result of inclinations and prejudices. 3. If step 2 does not suffice to solve the problem, consider fully the characterized case in the light of the available moral theories.

Medical Staff Responsibility to monitor and supervise

Medical staff is responsible to Governing Board. • Usually accomplished through a peer review system. • Governing board has the right to dismiss disruptive physicians subject to medical staff recommendation. (Ladenheim v. Union County Hospital District, Huffaker v. Bailey)

Failure to Read Nurses' Notes

On October 17, the medical record indicated that Mr. Todd's sternotomy wound and the mid-lower left leg incision were reddened, and his temperature was 99.6 degrees Fahrenheit. Dr. Sauls did not commonly read the nurses' notes but instead preferred to rely on his own observations of the patient. In his October 18 notes, he indicated that there was no drainage. The nurses' notes, however, show that there was drainage at the chest tube site. In contrast to the medical records showing that Todd had a temperature of 101.2 degrees Fahrenheit, Dr. Sauls noted that the patient was afebrile (normal, without fever). On October 19, Dr. Sauls noted that Todd's wounds were improving, and he did not have a fever. Nurses' notes indicated redness at the surgical wounds and a temperature of 100 degrees Fahrenheit. No white blood count had been ordered. Again on October 20, the nurses' notes indicated redness at the site of the wound and a temperature of 100.8 degrees Fahrenheit. No wound culture had yet been ordered. Dr. Kamil, one of Todd's treating physicians, noted that Todd's nutritional status needed to be seriously confronted and suggested that Dr. Sauls consider supplemental feeding. Despite this, no follow-up to his recommendation appeared and the record shows no action by Dr. Sauls to obtain a nutritional consult. Todd was transferred to the intensive care unit on October 21 because he was gravely ill with profoundly depressed ventricular function. The following day the nurses' notes described the chest tube site as draining foul-smelling bloody purulence. The patient's temperature was recorded to have reached 100.6 degrees Fahrenheit. This was the first time that Dr. Sauls had the chest tube site cultured. On October 23, the culture report from the laboratory indicated a staph infection, and Todd was started on antibiotics for treatment of the infection. On October 25, at the request of family, Todd was transferred to St. Luke's Hospital. At St. Luke's, Dr. Leatherman, an internist and invasive cardiologist, treated Todd. Dr. Zeluff, an infectious disease specialist, examined Todd's surgical wounds and prescribed antibiotic treatment. On his admission to St. Luke's, every one of Todd's surgical wounds was infected. Despite the care given at St. Luke's, Todd died on November 2, 1988. The family brought a malpractice suit against the surgeon. The District Court entered judgment on a jury verdict for the defendant, and the plaintiff appealed, claiming the surgeon breached his duty of care owed to the patient by failing to (1) aggressively treat the surgical wound infections, (2) read the nurses' observations of infections, and (3) provide adequate nourishment, instead allowing the patient's body weight to waste away rapidly. Dr. Sauls committed medical malpractice when he breached the standard of care he owed to Todd. Todd was effectively ineligible for a heart transplant, which was his only chance of survival because of the infections and malnourishment caused by Dr. Sauls's negligent care. Sauls's testimony convinced the Louisiana Court of Appeals that he failed to treat the surgical wound infections aggressively, that he chose not to take advantage of the nurses' observations of infection, and that he allowed Todd's body weight to waste away, despite knowing that extreme vigilance was required because of Todd's already severely impaired heart. In cases in which a patient has died, the plaintiff need not demonstrate that the patient would have survived if properly treated. Rather, the plaintiff need only prove that the patient had a chance of survival and that his chance of survival was lost as a result of the defendant/physician's negligence. The defendant/physician's conduct must increase the risk of a patient's harm to the extent of being a substantial factor in causing the result, but need not be the only cause. Dr. Sauls's medical malpractice exacerbated an already critical condition and deprived Mr. Todd of a chance of survival. Todd trusted Dr. Sauls to do the right thing. Instead, he failed to follow Todd's care closely enough to identify his declining health as a result of an infection—which was clearly indicated in the nurses' notes.

Patient Assessments and Diagnosis

Patient assessment involves the systematic collection and analysis of patient-specific data necessary to help determine a patient diagnosis, from which stem the patient's care and treatment plans. The patient's plan of care is only as good as assessments conducted by the practitioners of the various disciplines (e.g., physicians, nurses, dietitians, physical therapists). The physician's assessment involves an evaluation of the patient's history, symptoms, and physical examination results. It must be conducted within 24 hours of a patient's admission to the hospital. The findings of the clinical examination are used to determine the patient's plan of care. The assessment is the process by which a doctor investigates the patient's state of health, looking for signs of trauma and disease. It sets the stage for accurately diagnosing the patient's medical problems. A cursory and negligent assessment can lead to a misdiagnosis of the patient's health problems and/or care needs and, consequently, to poor care.

Patient Diagnosis

Patient diagnosis refers to the process of identifying a possible disease or disease process, thus providing the physician with treatment options. Screens, assessments, reassessments, and the results of medical diagnostic testing such as electroencephalography (EEG), electrocardiography (ECG), imaging (FIGURE 10-3), and laboratory findings are some of the tools of medicine that assists providers (e.g., physicians, osteopaths, dentists, podiatrists, nurse practitioners, physician assistants) in diagnosing the possible causes of a patient's symptoms and medical problems—that is, the medical diagnosis—from which a treatment plan is developed. The cases presented here describe some of the lawsuits that have occurred due to misdiagnoses and failure to properly treat the patient based on the results of diagnostic testing. Even with all the diagnostic tools available to physicians, if they order the tests and fail to review or interpret them in conjunction with a patient's physical complaints and medical history, they are of little or no value. Tests results from imaging studies and laboratory results are useless in arriving at an accurate diagnosis and appropriate treatment plan if they are merely filed away after a cursory review.

Physical Therapy

Physical therapy is the art and science of preventing and treating neuromuscular or musculoskeletal disabilities through the evaluation of an individual's disability and rehabilitation potential and the use of physical agents—heat, cold, electricity, water, and light—and neuromuscular procedures that, through their physiologic effect, improve or maintain the patient's optimum functional level. Because of different physical disabilities brought on by various injuries and medical problems, physical therapy is an extremely important component of a patient's total health care. As the following cases illustrate, there can be both ethical and legal issues when a therapist incorrectly interprets a physician's orders for physical therapy.

Abandonment

Physician is liable if: - Medical care was unreasonably discontinued - The discontinuance of medical care was against the patient's will - The physician failed to arrange for care by another physician. - Foresight indicated that discontinuance might result in physical harm. - Actual harm was suffered by the patient.

Personalized Treatment Versus Assemble-Line Medicine

Physician-patient relationships are more likely to be successful when patient care is more personalized. Assembly-line medicine often depersonalizes the rapport between physician and patient. Frederick Taylor was credited with being the first American management consultant and his philosophy of "the system must come before man"[45] has been credited with improving the manufacturing process in the United States. Taylorism (as it has come to be called) has been infiltrating the medical system, however, and both patients and doctors complain about the negative impact on them of what is perceived to be the practice of assembly-line medicine. Productivity factors and medical record requirements in addition to salary considerations place heavy burdens on many doctors to limit patient face time to fifteen-minute blocks for routine visits. However, if during that visit, the patient reveals an unexpected complication that requires a longer visit, it then throws the doctor's entire day's schedule off. Patients sitting in a doctor's waiting room to be seen are not privy to the reasons why they are not called in to see their doctor until long past the scheduled appointment time.

Self-referral

Physicians refer patients to facilities that they own in whole or on part.

Professional Ethics

Powerpoing

ACHE Code of Ethics

Preamble I. The Healthcare Executive's Responsibilities to the Profession of Healthcare Management II. The Healthcare Executive's Responsibilities to Patients or Others Served, to the Organization and to Employees III. Conflicts of Interest IV. The Healthcare Executive's Responsibilities to Community and Society V. The Healthcare Executive's Responsibility to Report Violations of the Code

Psychology

Psychologists are expected to safeguard the welfare and rights of those with whom they interact professionally. They must establish relationships of trust with those with whom they work. They must uphold professional standards of conduct, clarify their professional roles and obligations, and accept responsibility for their behavior. Principle A of the "Psychologist and Code of Conduct" states in part:

Respiratory Care

Respiratory care involves the treatment, management, diagnostic testing, and control of patients with cardiopulmonary deficits. A respiratory therapist (RT) is a person employed in the practice of respiratory care who has the knowledge and skill necessary to administer respiratory care. As with other healthcare professionals, respiratory RTs are expected to comply with their professional code of ethics. The American Association for Respiratory Care, in its Statement of Ethics and Professional Conduct, requires that RTs: That code was violated in State University v. Young. [106] In this case, the RT was suspended for using the same syringe for drawing blood from a number of critically ill patients. The therapist had been warned several times of the dangers of that practice and that it violated the state's policy of providing quality patient care. Although an RT is responsible for the negligent acts, the employer can be held responsible for the negligent acts of the therapist under the legal doctrine of respondeat superior.

Respect for Privacy

Respect for the privacy of medical information is a central feature of the physician-patient relationship. Under the Hippocratic Oath and modern principles of medical ethics derived from it, physicians are ethically bound to maintain patient confidences. The physician-patient privilege imposes on a physician an obligation to maintain the confidentiality of each patient's communications. This obligation applies to all healthcare professionals. An exception to the rule of confidentiality of patient communications is the implied right to make necessary information available to others involved in the patient's care. Information received by a physician in a confidential capacity relating to a patient's health should not be disclosed without the patient's consent. Disclosure may be made under compelling circumstances (e.g., suspected child abuse) to a person with a legitimate interest in the patient's health. The Code of Medical Ethics requires that patient information remain confidential and that physicians who violate that confidentiality be reported to the appropriate regulatory body as provided for in federal and state statutes and regulations. Section 6530 (23) of the New York State Education Law, for example, defines professional misconduct as the "revealing of personally identifiable facts, data or information obtained in a professional capacity without the consent of the patient."[21] The State of New York Department of Health has set forth a penalty of censure, reprimand, suspension of license, revocation of license, annulment of license, limitation on further license, or fine for a person found guilty of professional misconduct (Public Health Law A4 230-a), which includes revealing patient information without consent or failing to maintain accurate information. The Department of Health is responsible for maintaining the standards and ethics of the profession and for enforcing those standards. In addition, the Principles of Medical Ethics of the American Medical Association states that physicians, including physicians employed by industry, have an ethical and legal duty to protect patient confidentiality.

Blanchard and Peale's Three Questions 1. Is it legal? 2. Is it balanced? 3. How will it make me feel about myself?

Tests of Ethical Behavior • Morning-after Test - How will you feel about this tomorrow morning? • Front-Page Test - How would you like to see this behavior written up on the front page of your hometown newspaper? • Mirror Test - How will you feel about this behavior when you look in the mirror? • Role Reversal Test - How would you feel about being on the receiving end of this behavior? • Common Sense Test - What does every common sense say about this behavior?

Physician Issues (powerpoint)

The Hippocratic Oath • Medical Students swear to this oath when they graduate. • The oath has been reworded over time • The following slides contain several versions of the oath • There is debate whether or not the modern version have watered down the original intent of the oath. • Has it become a meaningless relic?

Certification of Healthcare Professionals

The certification of healthcare professionals is the recognition by a governmental or professional association that an individual's expertise meets the standards of that group. Some professional groups establish their own minimum standards for certification in those professions that are not licensed by a particular state. Certification by an association or group is a self-regulation credentialing process.

Credentialing is critical

The credentialing process is designed to ensure a competent qualified is permitted to practice within a facility. • Hospital's have a duty to ensure the competency of it professionals. • Insinga v. LaBella, Patient died under the care of an individual fraudulently masquerading as a physician. • Camden v. Abraham K. Asante, Asante lied on his job application as sole anesthesiologist Walson Army Hospital. Czechoslovkian Medical diploma was a forgery. Patient Joseph Brand, died three years after surgery in an irreversible coma because Asante was not competent to operate anesthesia equipment.

Treat Caregivers with Respect

The doctor had treated a girl in the ER for flu and then released her. She ended up back in the ER 30 hours later in respiratory distress and eventually died. His job was in jeopardy. "When I got home in the early-morning hours, I was just sad. I cried for the girl and her family. I cried myself to sleep and woke up still sad.... There's a saying we have in the emergency room when we witness trauma and death among the innocent: A little piece of my soul died."

Negligent Acts in Nursing

The following cases illustrate some of the acts or omissions constituting negligence that all nurses should be aware of. They are by no means exhaustive and merely represent the wide range of potential legal pitfalls in which nurses might find themselves.

Principles of Medical Ethics

The medical profession has long subscribed to a body of ethical guidelines developed primarily for the benefit of the patient. As a member of this profession, a physician must recognize responsibility to patients first and foremost, as well as to society, to other health professionals, and to self. The principles adopted by the American Medical Association are not laws but rather standards of conduct that define the essentials of honorable behavior for the physician.

Physician-Patient Relationship

The physician-patient relationship entails special obligations for the physician to provide care to his or her patient. The physician's primary commitment must always be the patient's welfare and best interests, whether the physician is preventing or treating illness or helping the patient to cope with illness, disability, and death. It has long been recognized that the health and welfare of the patient depends on a collaborative effort between the physician and the patient. The physician must support the dignity of all patients and respect their uniqueness.

Failure to Restrain Causes Patient Fall

The plaintiff in Cockerton v. Mercy Hospital Medical Center [104] was admitted to the hospital for the purpose of surgery. Her physician ordered postsurgical X-rays for her head and face to be taken the next day. A hospital employee took the plaintiff from her room to the X-ray department by wheelchair. A nurse had assessed her condition as slightly "woozy" and drowsy. An X-ray technician took charge of the plaintiff in the X-ray room. After the plaintiff was taken inside the X-ray room, she was transferred from a wheelchair to a portable chair for the procedure. After being moved, the plaintiff complained of nausea. The technician did not use the restraint straps to secure the plaintiff to the chair. At some point during the procedure, the plaintiff had a fainting seizure. The technician called for help. When another hospital employee entered the room, the technician was holding the plaintiff in an upright position. She appeared nonresponsive. The plaintiff only remembered being stood up and having a lead jacket placed across her back and shoulders. The technician maintains that the plaintiff did not fall. At the time the plaintiff left the X-ray room, her level of consciousness was poor. The plaintiff's physician noticed a deflection of the plaintiff's nose but had difficulty assessing it because of the surgical procedure from the day before. The following day, the deflection of the plaintiff's nose was much more evident. A specialist was contacted, and an attempt was made to correct the deformity. The specialist made an observation that it would require a substantial injury to the nose to deflect it to that severity. The plaintiff instituted proceedings against the hospital, alleging that the negligence of the nurses or technicians allowed her to fall during the procedure and subsequently caused injury. The jury concluded that the hospital was negligent in leaving the plaintiff unattended or failing to restrain her, which proximately caused her fall and injury. The X-ray technician testified that during the X-ray the plaintiff appeared to have a "seizure episode." She also testified that she left the plaintiff unattended for a brief period of time and that she did not use the restraint straps that were attached to the portable X-ray chair. Using the restraint straps would have secured the plaintiff to the portable chair during the X-ray examination.

Would You Ever Date a Patient?

The sensitive topic of doctor-patient romance heated up a recent all-physician discussion on Medscape Connect. The conversation ranged from general ethical warnings to specific forms of temptation, as doctors bravely explored some delicate areas. A dermatologist began the discussion with personal history and a question: "Since I stopped wearing my wedding band about a year ago, more of my patients have increased interest in me. Just out of curiosity, how many of you have dated active patients or former patients?" Several colleagues were clear and firm in their opposition to these kinds of associations. An internist framed the dilemma in contrasting lists: "Reasons to date a patient: fleeting excitement. Reasons to never date anybody you have a physician relationship with: your license, your reputation, your license, unhealthy psychodynamics, your license, STDs, your license." Another internist found the answer self-evident: "I think everyone should know that we lose objectivity and the ability to provide care when we enter into an intimate or romantic situation with patients... it is IMPROPER." Others had strong opinions but made a distinction between current and former patients. "NO, NO, NO," intoned a genomic medicine specialist. "Discharge them from your practice. Then see what happens. If they are still interested, ask away. If they are not still interested, then they may have been looking for a lottery ticket." A surgeon added, "A physician dating a patient is a lot like smoking while pumping gas. I've seen people do it with no problem, but it carries a high risk of unpleasant (and permanent) consequences." Other physicians went back to Ancient Greece to bolster their arguments. "Since the time of Hippocrates this has been a no-no," wrote a pediatrician. A primary care physician agreed and offered the relevant quote: "'Whatever houses I may visit, I come for the benefit of the sick, remaining free of all intentional injustice, of all mischief and in particular of sexual relations.' And there's the rub in this oath we take." But some did not feel bound by a pledge to Apollo and saw glimmers of hope for doctor-patient unions: "My previous boss married his psoriasis patient," brightly offered a dermatologist. "So much temptation, so little time! Sometimes one wonders what is gained or lost when one is cautious, serious, dignified, upstanding," wondered an internist, dismissing the caution of many colleagues. A primary care physician went even further. "Up until the 1990s, dating patients or even marrying them wasn't at all that uncommon," he wrote, and he went on to reject the caution of colleagues as a "[projection of] the anger of or your envy onto those of us who did [date patients] back in those Golden Days of American Medicine." But an orthopedic surgeon quickly responded: "I am not jealous. I could have so many girlfriends, it is scary. I choose to avoid them." Many other physicians picked up on the idea that it is a difficult road for the attractive physician because of so many potential suitors. An internist claimed to have been "hit on like Normandy beach." And a dermatologist mentioned that female patients have provocatively left red panties in the examination room or asked him to go on motorcycle rides. Ultimately, most of these heartthrobs came to the decision that it was not worth the risk of damaging one's professionalism. One internist, while understanding the temptation, argued against pursuing patients because there are so many other available options: "I don't think it is difficult to find interested companions for just about any activity. Bars are still full of desperate people seeking inappropriate connections. The Internet is funded largely on unchecked libido. If one is looking for [sexual partners], why risk the problems of patient relationship issues?" And another internist questioned the basic pleasures of such risky relationships: "Imagine the consequence of marrying or dating a patient; likely you will be practicing your trade every minute...after a long day in the office." A survey on Medscape found that 68% of physicians believed that it was never ethical to date a patient, even if the patient had been discharged. The original poster, seeking a more official standard, provided the guidelines of the American Medical Association (AMA) on the topic: Sexual contact that occurs concurrent with the patient-physician relationship constitutes sexual misconduct.... Sexual or romantic relationships with former patients are unethical if the physician uses or exploits trust, knowledge, emotions, or influence derived from the previous professional relationship.[1] An internist was even more austere than the AMA: "As soon as a patient is examined by a physician in your office, you establish a physician-patient relationship. That relationship ideally is sacred, and if one is turned on by an attractive patient during such an encounter in the office, your options are to either discharge the patient or ALWAYS have a chaperone." The final word goes to a primary care physician, presumably with some experience in gerontology, who quipped, "I use carbon-14 to date some of my patients.

The Credentialing Process

There is a distinction between credentials and privileges. • Credentials are the documents that verify a professional provider's education, training and experience (e.g. licenses, diplomas, certification, references, etc.) • Privileges authorize a credentialed professional to perform specific services and procedures.

Law and Ethics Intertwine

This section introduces the reader to how the law and ethics intertwine in patient care. The law provides that injury to a patient due to a negligent act can result in financial penalties imposed by the courts to compensate the injured party and hopefully deter similar acts. Nonmaleficence in medical ethics is a central guiding principle of the ethical practice of medicine first expressed by Hippocrates, and translated into Latin as primum non nocere, "first do no harm." It is medicine's most fundamental axiom that aptly describes where the law and ethics unite—first do no harm. The injury of a patient due to an avoidable negligent act often involves both principles of law and ethics.

Negligence

This section provides an overview of common medical mistakes. The reader should keep in mind when reading this section that "ethical values and legal principles are usually closely related, but ethical obligations typically exceed legal duties.... The fact that a physician charged with allegedly illegal conduct is acquitted or exonerated in civil or criminal proceedings does not necessarily mean that the physician acted ethically."

Family Medical History

When reviewing a patient's family history (FIGURE 10-1), the physician must not be indifferent or dismissive of the patient's complaints and thoughts as to the possible cause of his or her illness. Such was the case in the following news clipping.

Patient Autonomy

Where there are two or more medically acceptable approaches to a problem a competent patient has the right to choose one or refuse both. The physician must have the patient's informed consent to proceed.

No' no's for Physicians

• Failure to: - Respond: Emergency Dept. call - Provide Informed Consent - Read Nurses' Notes - Seek Consultation - Obtain Adequate History and Physical

Falsification of Records

• Intentional alteration • Falsification • Destruction of medical records Is presumed as evidence of actual malice and justify punitive damages. "a physician's duty to a patient cannot but encompass his affirmative obligation to maintain the integrity, accuracy, truth and reliability of the patient's medical record..." Matter of Jascalevich

Informed consent/alternative Procedures

• Stover v. Surgeons, 635 A.2d 1047 (Pa. Super. Ct. 1993 Pt. w/damage to heart valves as result of childhood rheumatic fever. Pt alleges she was only told that mechanical valves outlasted natural tissue valves and was never informed about the risks associated with installing mechanical valves. After surgery the Pt. suffered severe, permanent brain damage from multiple episodes of thromboemboli directly caused by the valve implantation. She sued for lack of informed consent

Value Statements

• We recognize and affirm the unique and intrinsic worth of each individual. • We treat all those we serve with compassion and kindness. • We act with absolute honesty, integrity and fairness in the way we conduct our business and the way we live our lives. • We trust our colleagues as valuable members of our healthcare team and pledge to treat one another with loyalty, respect and dignity.

Morally Wrong, Legally Actionable

A USA Today report claims that physicians knowingly perform thousands of unnecessary surgeries annually. In that same article, Nancy Epstein, a neurosurgeon and chief of Neurosurgical Spine and Education at Winthrop University Hospital in Mineola, New York, states, "I am seeing more and more patients who are told to have operations they don't need.... If patients have operations they don't need, they risk having major problems—infections, paralysis, heart attacks, strokes."[6]

Medical Assistant

A medical assistant is an unlicensed person who provides administrative, clerical, and/or technical support to a licensed practitioner. A licensed practitioner is generally required to be physically present in the treatment facility, medical office, or ambulatory facility when a medical assistant is performing procedures, but duties and scope of practice vary from state to state.[75] Employment of medical assistants is expected to continue to grow over time. This growth is due in part to technological advances in medicine and a growing and aging population. Increasing use of medical assistants in the rapidly growing healthcare industry is expected to result in continuing rapid employment growth for the occupation. Medical assistants work in physicians' offices, clinics, nursing homes, and ambulatory care settings. The duties of medical assistants vary from office to office, depending on the location and size of the practice and the practitioner's specialty. In small practices, medical assistants usually are generalists, handling both administrative and clinical duties. Those in large practices tend to specialize in a particular area, under supervision. Administrative duties often include answering telephones, greeting patients, updating and filing patients' medical records, filling out insurance forms, handling correspondence, scheduling appointments, arranging for hospital admission and laboratory services, and handling billing and bookkeeping. Clinical duties vary according to state law and include assisting in taking medical histories, recording vital signs, explaining treatment procedures to patients, preparing patients for examination, and assisting the practitioner during examinations. Medical assistants collect and prepare laboratory specimens or perform basic laboratory tests on the premises, dispose of contaminated supplies, and sterilize medical instruments. They instruct patients about medications and special diets, prepare and administer medications as directed by a physician, authorize drug refills as directed, provide telephone prescriptions to a pharmacy, prepare patients for X-rays, perform electrocardiograms, remove sutures, and change dressings. Medical assistants who work in the various medical specialties often have additional duties. Podiatric medical assistants, for example, make foot molds and assist podiatrists in surgery. Ophthalmic medical assistants help ophthalmologists provide eye care. They conduct diagnostic tests, measure and record vision, and test eye muscle function. They also teach patients how to insert, remove, and care for contact lenses. Under the direction of the physician, ophthalmic medical assistants may administer eye medications. They also maintain optical and surgical instruments and may assist the ophthalmologist in surgery.[77]

Failure to Question Patient Discharge

A nurse has a duty to question the discharge of a patient if he or she has reason to believe that such discharge could be injurious to the health of the patient. Jury issues were raised in Koeniguer v. Eckrich [38] by expert testimony that the nurses had a duty to attempt to delay the patient's discharge if her condition warranted continued hospitalization. By permissible inferences from the evidence, the delay in treatment that resulted from the premature discharge contributed to the patient's death. Summary dismissal of this case against the hospital by a trial court was found to have been improper.

Ambiguous Medication Order

A nurse is responsible for making an appropriate inquiry if there is uncertainty about the accuracy of a physician's medication order in a patient's record. The medication order in Norton v. Argonaut Insurance Co.,[31] as entered in the medical record, was incomplete and subject to misinterpretation. Believing the order to be incorrect because of the dosage, the nurse asked two physicians present on the patient care unit whether the medication should be given as ordered. The two physicians did not interpret the order as the nurse did and therefore did not share the same concern. They advised the nurse that the attending physician's instructions did not appear out of line. The nurse did not contact the attending physician but instead administered the misinterpreted dosage of medication. As a result, the patient died due to a fatal overdose of the medication. The nurse was negligent by failing to consult with the attending physician before administering the medication. The nurse was held liable, as was the physician who wrote the ambiguous order that led to the fatal dose. In discussing the standard of care expected of a nurse who encounters an apparently erroneous order, the court stated that not only was the nurse unfamiliar with the medication in question, but she also violated the rule generally followed by members of the nursing profession in the community, which requires that the prescribing physician be called when there is doubt about an order. The court noted that it is the duty of a nurse to make absolutely certain what the physician intended regarding both dosage and route.

Registered Nurse

A registered nurse is one who has passed a state registration examination and has been licensed to practice nursing. The scope of practice of a registered professional nurse includes patient assessment, analyzing laboratory reports, patient teaching, health counseling, executing medical regimens, and operating medical equipment as prescribed by a physician, dentist, or other licensed healthcare provider. The nursing profession "is in a period of rapid and progressive change in response to the advances in technology, changes in patterns of demand for health services, and the evolution of professional relationships among nurses, physicians and other health professions."Although most states have similar definitions of nursing, differences generally revolve around the scope of practice permitted.

Failure to Report Physician Negligence

An organization can be liable for the failure of nursing personnel to take appropriate action when a patient's personal physician is clearly unwilling or unable to cope with a situation that threatens the life or health of the patient. In a California case, Goff v. Doctors General Hospital,[37] a patient was bleeding seriously after childbirth because the physician failed to suture her properly. The nurses testified that they were aware of the patient's dangerous condition and that the physician was not present in the hospital. Both nurses knew the patient would die if nothing was done, but neither contacted anyone except the physician. The hospital was liable for the nurses' negligence in failing to notify their supervisors of the serious condition that caused the patient's death. Evidence was sufficient to sustain the finding that the nurses who attended the patient and who were aware of the excessive bleeding were negligent and that their negligence was a contributing cause of the patient's death. The measure of duty of the hospital toward its patients is the exercise of that degree of care used by hospitals generally. The court held that nurses who knew that a woman they were attending was bleeding excessively were negligent in failing to report the circumstances so that prompt and adequate measures could be taken to safeguard her life.

NP Negligence Imputed to Physician

As described in Adams v. Krueger,[23] the negligence of an NP can be imputed to a physician if the physician is the employer of the nurse. The plaintiff here went to her physician's office for diagnosis and treatment. A NP who was employed by the physician performed her assessment and diagnosed the plaintiff as having genital herpes. The physician prescribed an ointment to help relieve the patient's symptoms. The plaintiff eventually consulted with another physician who advised her that she had a yeast infection, not genital herpes. The plaintiff and her husband filed an action against the initial treating physician and his NP for their failure to correctly diagnose and treat her condition. The action against the physician was based on his failure to review the NP's diagnosis and treatment plan. The trial court found in favor of the plaintiff and the defendants appealed. The court of appeals affirmed, and further appeal was made. The Idaho Supreme Court held that the negligence of the nurse was properly imputed to the physician. The physician and NP stood in a master-servant relationship and the nurse acted within the scope of her employment. Consequently, her negligence was properly charged, or attributed to Krueger in applying the comparative negligence statute.[24] Even though a physician can be at risk as a defendant in a lawsuit against the negligent acts of a nurse practitioner, the risk is minimal as compared to physicians.

Untimely Discharge

Barbara Jupiter, as executor of the Estate of Warren Jupiter, brought an action against the Department of Veterans Affairs (VA) in Jupiter v. U.S.,[40] alleging that Mr. Jupiter sustained personal injury, pain, and suffering prior to his death allegedly caused by the negligence of the defendant's agents and employees while he was a patient at the VA hospital. A bench trial was conducted over a period of seven days. Mr. Jupiter had elected to undergo bariatric surgery for weight loss at the VA hospital. One step in the operation was claimed to be a departure from the accepted practice of performing bariatric surgery that led to an infection and ultimately resulted in Jupiter's death. The record showed that the distal stomach was removed at that time. The removal of the distal stomach was determined to be a departure from the standard of care. Evidence in this case included testimony from 14 witnesses, medical records, reports of approximately 6,000 pages, and multiple anatomical diagrams and images. One witness, Dr. Randall, who performed over 6,000 bariatric surgeries, testified that in his opinion there was no surgical reason for removing the distal stomach. He explained that the basis for that opinion was the positive postoperative management opportunities of which Jupiter was deprived by the removal of the distal stomach. Jupiter was discharged with an elevated white blood count without timely treatment. Dr. Randall was of the opinion that the elevated white blood count indicated that there was an ongoing infection at the time Jupiter was discharged. Jupiter was readmitted to the VA hospital on June 13, 2003, and an evaluation of his condition then revealed a urinary tract infection (UTI), which was successfully treated. By June 23, 2003, even though his white blood count remained high, he was discharged from the VA hospital and sent to St. Alban's Hospital. Dr. Telzak testified that decision departed from accepted medical practice. He testified the same early departure from the VA hospital on May 14, 2003, was unacceptable medical practice because no determination was made as to why his white blood count remained elevated. His testimony was further supported by the fact that several months later, in November 2003, an abdominal CT scan evidenced a gastric leak and fluid in the ultra-abdominal cavity which, he testified, was the cause of the elevated white blood count on June 23. The surgeon failed to address Jupiter's condition two months earlier when there were signs of infection. The surgeon was indifferent to whether his recommendation that something be done to address the possibility of an internal gastric leak attributable to his surgery was heeded. He claimed it was the medical service's responsibility and not his. His testimony is startling, given the testimony of Dr. Weinshel, the deputy chief of staff of the VA hospital. Weinshel was asked whether the department of surgery was responsible for the patient's follow-up care, and he answered "sure." The court concluded that the defendant's negligence was the proximate cause of the patient's pain and suffering. The plaintiff's estate was awarded $5,900,000.

The contents of codes of ethics vary depending on the risks associated with a particular profession. Ethical codes for psychologists, for example, define relationships with clients in greater depth because of the personal one-to-one relationship they have with their clients. Practicing outside one's scope of practice has both ethical and legal concerns. Legislation in many states imposes a duty on hospitals to provide emergency care. If the public is aware that a hospital furnishes emergency services and relies on that knowledge, the hospital has a duty to provide those services to the public. Hospitals are expected to notify specialty on-call physicians when their particular skills are required in the emergency department. A physician who is on call and fails to respond to a request to attend a patient can be liable for injuries suffered by the patient because of his or her failure to respond. There can be both ethical and legal repercussions if a professional incorrectly interprets a physician's orders. A defense that sexual improprieties with clients did not take place during treatment sessions is unacceptable conduct. Scope of practice refers to the permissible boundaries of practice for healthcare professionals, as is often defined in state statutes, which define the actions, duties, and limits of professionals in their particular roles. A professional who exceeds his or her scope of practice as defined by state practice acts can be found to have violated licensure provisions or to have performed tasks that are reserved by statute for another healthcare professional. The power and authority to regulate drugs and their products, packaging, and distribution rest primarily with federal and state governments. Certification of healthcare professionals is the recognition by a governmental or professional association that an individual's expertise meets the standards of that group. Licensure can be defined as the process by which some competent authority grants permission to a qualified individual or entity to perform certain specified activities that would be illegal without a license.

Chapter 9 Review

Chiropractor

Chiropractors are required to exercise the same degree of care, judgment, and skill exercised by other reasonable chiropractors under like or similar circumstances. They are expected to maintain the integrity, competency, and standards of their profession, as well as avoid even the appearance of professional impropriety. Chiropractors have a duty to determine whether a patient is treatable through chiropractic means and to refrain from chiropractic treatment when a reasonable chiropractor would or should be aware that a patient's condition will not respond to chiropractic treatment. Failure to conform to the standard of care can result in liability for any injuries suffered. Although the American Chiropractic Association says that neck manipulation is a safe procedure, there are risks associated with chiropractic manipulation as with any medical procedure. Failure to conform to the standard of care can result in liability for any injuries suffered. Lawsuits against chiropractors often involve a failure to properly diagnose a patient's medical condition and harm as a result of treatments, such as manipulation of the spine and neck. For example, a patient stated that she knew she was in trouble shortly after a chiropractor began to manipulate her neck. She said she knew what was happening, telling the chiropractor, "Stop. I'm having a stroke."[43] The patient stated that if she had been told that there would be a risk of a stroke, she would not have continued with the treatment.[44] As with any medical procedure, the chiropractor should inform each patient as to the risks, benefits, and alternatives associated with a suggested procedure. All patients should sign a consent form acknowledging that they have been informed of the risks, benefits, and alternatives to the recommended procedure.

Dental Hygienist

Dental hygienists are expected to treat patients with respect and to disclose all relevant information so that they can make informed choices about their care. Patient information must be kept confidential. Dental hygienists have an obligation to provide services in a manner that protects all patients and minimizes harm to them.

Justice

Does the value of life diminish with age? Do you see me? Do you hear me? Am I less valuable because I am older? We are all created equal in God's sight. But when it comes to supply and demand, everything we thought we learned about ethics is put to the test. Who gets the new lung when there is a limited supply? Are there criteria for determining what the right thing to do is? If so, who decided what the criteria should be? The questions as to justice and the distribution of scarce resources are numerous and the answers are not easily sorted out, as noted in the following Reality Check.

Drug Substitution

Drug substitution may be defined as the dispensing of a different drug or brand in place of the drug or brand ordered. "All states permit generic interchange to one extent or another."[81] Healthcare organizations use a "formulary system" whereby physicians and pharmacists create a formulary listing drugs used in the institution. The formulary contains the brand names and generic names of drugs. Under the formulary system, a physician agrees that his or her prescription calling for a brand name drug may be filled with the generic equivalent of that drug (e.g., a drug that contains the same active ingredients in the same proportions). When a formulary system is in use, the prescribing physician can request the use of a particular brand-name drug, when he or she deems it necessary or desirable for patient safety, by expressly prohibiting the use of the formulary system. Hospitals are watchful for any abuses by physicians who circumvent the formulary for no valid, patient-safety reason. The ever-escalating costs of pharmaceutical products necessitates that hospitals become more vigilant in order to rein in costs.

Ethics and Inaccurate Lab Results

Ethics codes for both healthcare organizations and their professionals are written to protect patients as well as employees and their employers. The American Society for Clinical Laboratory Science, in its code of ethics states as to the duty owed to patients:Lab tests are not always accurate, sometimes due to human error or faulty test results. According to an article in the Baltimore Sun on March 11, 2004, approximately 640 patients at Maryland General Hospital may have received incorrect HIV and hepatitis test results. Some patients might have been told they were HIV-negative when in fact they were positive and vice versa, and the hospital failed to notify the patients of the problem. A former hospital employee had apparently filed a complaint. State health officials discovered in January that the hospital's laboratory personnel overrode controls in the testing equipment that showed the results might be in error and then mailed them to patients anyway.[68] Licensure and certification of laboratory staff are necessary in order to help prevent incidents of this nature. The American Society for Clinical Pathology, in a policy statement on State Licensure of Laboratory Personnel, Policy (Number 05-02), states: Inaccurate lab tests are not uncommon occurrences and the headlines of inaccurate reporting continue to come to public attention, as noted in the next news clipping.

Failure to Follow Instruction

Failure of a nurse to follow the instructions of a supervising nurse to wait for her assistance prior to performing a procedure can result in the revocation of the nurse's license. The nurse in Cafiero v. North Carolina Board of Nursing [35] failed to heed instructions to wait for assistance before connecting a heart monitor to an infant. The incorrect connection of the heart monitor resulted in an electrical shock to the infant. The North Carolina Board of Nursing, under the Nursing Practice Act, revoked the nurse's license. The board had the authority to revoke the nurse's license even though her work before and after the incident had been exemplary. The dangers of electric cords are within the realm of common knowledge. The record showed that the nurse failed to exercise ordinary care in connecting the infant to the monitor.

Failure to Observe Patient's Charging Condition

Failure to observe changes in a patient's condition can lead to liability on the part of the nurse and the organization. The recovery room nurse in Eyoma v. Falco [39] (who had been assigned to monitor a postsurgical patient) left the patient and failed to recognize that the patient had stopped breathing. Nurse Falco had been assigned to monitor the patient in the recovery room. She delegated that duty to another nurse and failed to verify that the other nurse accepted that responsibility. Nurse Falco admitted she never got a verbal response from the other nurse, and, when she returned, there was no one near the decedent. She acknowledged that Dr. Brotherton told her to watch the decedent's breathing but claimed that she was not told that the decedent had been given narcotics. She maintained that on her return she checked the decedent and observed his respirations to be eight per minute. Thereafter, Brotherton returned and inquired about the decedent's condition. Falco informed the doctor that the patient was fine; however, on his personal observation, Brotherton realized that the decedent had stopped breathing. Decedent, because of oxygen deprivation, entered a comatose state and remained unconscious for over a year until his death.[40] The jury held the nurse to be 100% liable for the patient's injuries. The court held that there was sufficient evidence to support the verdict.

Failure to Note an Order Change

Failure to review a patient's record before administering a medication to ascertain whether an order has been modified may render a nurse liable for negligence. The physician in Larrimore v. Homeopathic Hospital Association [34] wrote an instruction on the patient's order sheet changing the method of administration from injection to oral medication. The nurse mistakenly gave the medication by injection. Perhaps the nurse had not reviewed the order sheet after being told by the patient that the medication was to be given orally; perhaps the nurse did not notice the physician's entry. Either way, the nurse's conduct was held to be negligent. The court went on to say that the jury could find the nurse negligent by applying ordinary common sense to establish the applicable standard of care.

Emergency Department

Federal and state statutes impose a duty on hospitals to provide emergency care (FIGURE 9-1). The statutes require hospitals to provide some degree of emergency service. If the public is aware that a hospital furnishes emergency services and relies on that knowledge, the hospital has a duty to provide those services to the public. Treatment rendered by hospitals is expected to be commensurate with that available in the same or similar communities or in hospitals generally. In Fjerstad v. Knutson,[58] the South Dakota Supreme Court found that a hospital could be held liable for the failure of an on-call physician to respond to a call from the emergency department. An intern, who attempted to contact the on-call physician and was unable to do so for 3½ hours, treated and discharged the patient. The hospital was responsible for assigning on-call physicians and ensuring that they would be available when called. The patient died during the night in a motel room as a result of asphyxia resulting from a swelling of the larynx, tonsils, and epiglottis that blocked the trachea. Testimony from the laboratory director indicated that the emergency department's on-call physician was to be available for consultation and was assigned that duty by the hospital. Expert testimony also was offered that someone with the decedent's symptoms should have been hospitalized and that such care could have saved the decedent's life. The jury could have believed that an experienced physician would have taken the necessary steps to save the decedent's life.

Float Nurse

Float nurses are designated as such because they are rotated from unit to unit based on staffing needs. They often cover nursing units with unusually burdensome workloads that often involve complex patients. Float nurses can present a liability to the organization if they are assigned to work in an area where they are not qualified and competent to perform the assigned duties. Failure to match skills with work assignments can be risky business for both the patient and the healthcare professional. Behavioral health nurses, for example, usually do not have the skills or competencies to cover for surgical nurses in the operating room. Failure to make assignments based on a nurse's skills presents a legal risk if a patient is injured as the result of a nurse's negligent act. The standard of care required in order to establish negligence would be based on the skills and competencies required of the assigned task. In addition to legal implications, it is clear that assignment of a professional to a task he or she is not competent to perform is ethically and morally wrong. The New York State Nurses Association, in a position statement on float nurses, states, in part: Joint Commission standards require that "Those who work in the hospital are competent to complete their assigned tasks."[29] It is the responsibility of the hospital's leadership to ensure that nurses are competent to perform the duties and responsibilities to which they are assigned. Not only is the employee responsible for a negligent act, the hospital can be found liable for assigning an employee to a duty that he or she is not competent to perform. This applies not strictly to float nurses but to all staff members.

Laboratory

Health organizations are generally required to provide clinical laboratory services in order to address the care needs of their patients. They are responsible for the quality and timeliness of the services provided. There are a variety of highly specialized tests that healthcare organizations contract out to reference laboratories. Some organizations, such as nursing home facilities, because of limited financial resources contract with reference laboratories to provide routine lab testing services. Reference labs are often private commercial facilities that perform routine high-volume and specialty testing. Laboratory medical technologists are expected to protect the welfare of patients and the tests conducted above all else. They are expected to avoid dishonest and unethical conduct. An organization's laboratory provides data that are vital to a patient's treatment. Among its many functions, the laboratory monitors therapeutic ranges, measures blood levels for toxicity, places and monitors instrumentation on patient units, provides education for the nursing staff (e.g., glucose monitoring), provides valuable data used in research studies, supplies data on the most effective and economical antibiotic for treating patients, serves in a consultative role, and provides important data as to the nutritional needs of patients. Representation by a laboratory representative during routine patient rounds is noted by their absence, mostly because of the difficulty in determining the proper fit for such representation on an interdisciplinary patient care team. For sure, exclusion does not breed participation. A well-rounded educational experience should include exposure to the knowledge of the laboratory technologist, who provides a wealth of information in diagnosing, treating, and/or monitoring the progression or regression of illness. Lab tests provide invaluable information in: identifying changes in health condition(s) before symptoms occur diagnosing or aiding in the diagnosis of a disease or condition planning treatment for a disease or condition evaluating a patient's response to treatment monitoring the course of a disease over time[65] The value of laboratory medicine in patient care is unquestioned. A detailed study by the Lewin Group for the U.S. Centers for Disease Control and Prevention concluded that "laboratory medicine is an essential element of the health care system. It is integral to many clinical decisions, providing physicians, nurses, and other health care providers with often pivotal information for the prevention, diagnosis, treatment and management of disease."[66] As noted in the following Reality Check, healthcare professionals can learn from the presence of a laboratory representative during case reviews.

Dietary

Healthcare organizations are expected to provide patients with diets that meet their individual needs. Some university hospitals stress the importance of good nutrition. University Hospitals in Cleveland describe the importance of nutritional services by promoting "the idea that proper nutrition can improve health and well-being. Our registered dietitians offer nutrition education and counseling for patients with conditions such as diabetes, seizure disorders or immune disorders, and work to incorporate dietary plans into the patients' course of treatment."[52] Massachusetts General Hospital "experts from the Department of Nutrition and Food Services aid the general public with management of specific dietary needs in many different areas, including cardiac care, diabetes and childhood and adult obesity. They also provide nutritional care and advice about lifestyle maintenance and good nutrition, often through classes available on the hospital's main campus and at community health centers."[53] New York-Presbyterian hospital in their nutrition program states: Healthcare organizations have traditionally failed to recognize or promote the importance of good nutritional care. However, The Joint Commission standards require that "Food and Nutrition products are consistent with each patient's care, treatment, and services."[55] Failure to address the nutritional needs of patients can lead to negligence suits, as noted in the cases presented here. Dietitians are expected to exercise professional judgment and practice dietetics based on scientific principles and current practice. Yet few healthcare organizations have fully integrated them into their patient care teams. Although the participation of pharmacists in the patient care setting is becoming the norm on patient care units, participation of dietitians is yet to be at an optimal level. The inability of hospitals and ambulatory care centers to provide adequate staff to address the nutritional needs of patients is due in part to financial constraints. Rural outpatient centers are generally understaffed and barely have time to address the patient's presenting complaints. Staffing to address the unique nutritional needs of many patients often goes unaddressed. Frequently, patients with poor nutritional habits often return over the years with more severe, costly, and debilitating medical conditions (e.g., diabetes and heart disease), as discussed in the following Reality Check.

Medical Records

Healthcare organizations are required to maintain a medical record for each patient in accordance with accepted professional standards and practices. The main purposes of the medical record are to provide a planning tool for patient care; to record the course of a patient's treatment and the changes in a patient's condition; to document the communications between the practitioner responsible for the patient and any other healthcare professional who contributes to the patient's care; to assist in protecting the legal interests of the patient, the organization, and the practitioner; to provide a database for use in statistical reporting, continuing education, and research; and to provide information necessary for third-party billing and regulatory agencies. Medical records must be complete, accurate, current, readily accessible, and systematically organized.

Expanding Role of the Pharmacist

Historically, the role of the pharmacist was centered on management of the pharmacy and accurate preparation and dispensing of drugs. The duties and responsibilities of pharmacists have, however, moved well beyond the scope of filling prescriptions and dispensing medications. Pharmacists do much more than this. They are increasingly playing an ever-expanding clinical role on various hospital specialty units (e.g., cardiology and oncology). They provide patient and staff education, consultation, and evaluation and selection of medications for placement in the hospital formulary; review medication errors; and report adverse drug reactions. Schools of pharmacy, recognizing the ever-expanding role of pharmacists in the clinical aspects of patient care, have raised the educational requirements for new graduates by requiring a Doctor of Pharmacy (Pharm.D.) degree.

Pain Management

I have been with Angie, my wife, on many of her appointments. One such appointment I vividly remember was at the University Hospital Pain Center, described by some as one of the top medical centers in the country. Here, after several residents poked her, they left the room. They later returned with their supervising attending physician. He stood over my Angie as she lay on the examination table. Looking down at her, he said, "We treat bone pain here." Angie replied, "You advertise yourself as a pain-management center. I don't understand." The attending physician replied, "Anything we do for you would be very risky and most likely will not work." Angie described a new implantable device being used at Duke University Medical Center. The attending responded, "We never heard of that; however, we can suggest other procedures, but they do have associated risks." The attending then proceeded to describe the procedures to Angie. Both Angie and I thought, "This is a major teaching hospital? Why won't the physicians suggest looking into Duke's procedure as to the potential risks and benefits for Angie?" The attending suggested, "Why don't you think about the procedures we have discussed. Just schedule a new appointment before you leave."

Refusal to Honor a Questionable Prescription

In Hooks v. McLaughlin,[84] the Indiana Supreme Court held that a pharmacist had a duty to refuse to refill prescriptions at an unreasonably faster rate than prescribed pending directions from the prescribing physician. The Indiana Code provides that a pharmacist is immune from civil prosecution or civil liability if he or she, in good faith, refuses to honor a prescription because, in his or her professional judgment, honoring of the prescription would aid or abet an addiction of habit.[85]

Fractured Skull, Not Intoxication

In Ramberg v. Morgan,[26] a police department physician at the scene of an accident examined an unconscious man who had been struck by an automobile. The physician concluded that the patient's insensibility was a result of alcohol intoxication, not the accident, and ordered the police to remove him to jail instead of the hospital. The man, to the physician's knowledge, remained semiconscious for several days and finally was taken from the cell to the hospital at the insistence of his family. The patient subsequently died, and the autopsy revealed massive skull fractures. The court found that any physician should reasonably anticipate the presence of head injuries when a car strikes a person. Failure to refer an accident victim to another physician or a hospital was actionable neglect of the physician's duty. Although the presence of a physician does not ensure the correctness of the diagnosis or treatment, a patient is entitled to such thorough and careful examination as his or her condition and attending circumstances permit, with such diligence and methods of diagnosis as usually are approved and practiced by medical people of ordinary or average learning, judgment, and skill in the community or similar localities.

PARAMEDICS AND FIRST RESPONDERS

In the 2011 National EMS Assessment, "a national estimate of 36,698,670 EMS responses within the United States (excluding territories) was calculated. Nationally on average, there were 1,217 EMS responses per 10,000 population."[2] Many of these patients "have complicated medical or traumatic conditions that require considerable knowledge, skill, and judgment to be treated effectively in the out-of-hospital setting. The regulations that describe the scope of practice for emergency services personnel varies from state to state. The National EMS Model describes the various activities EMS personnel can legally perform as regulated by law through certification and licensure."[3] As of 2011, there were an estimated 826,111 EMS professionals licensed and credentialed within the United States. The scope of practice does not define every activity of a licensed individual, such as lifting and moving patients, blood pressure, or bleeding control. The scope of practice focuses on activities regulated by law (for example, starting an intravenous line, administering a medication). The scope of practice for first responders is a continuing concern as the risks associated with their profession continue to change. The need for continuing education is therefore a high-priority concern in maintaining and improving their skills.First responders are always at risk when responding to those in need of emergency services. Illicit drugs and chemical hazards are often an issue in emergencies ranging from industry fires to routine roadside accidents. Carfentanil, for example, is another chemical substance on a long list of hazardous materials that was recently reported as presenting a hazard to all first responders as well as members of the general public. Carfentanil is a synthetic opioid approximately 10,000 times more potent than morphine and 100 times more potent than fentanyl. In those situations where there is a chemical hazard present, such as carfentanil, EMS and law enforcement personnel are required to follow safety protocols to avoid accidental exposure to themselves and the public. The four more common levels of EMS personnel reviewed here are emergency medical responder, emergency medical technician, advanced emergency medical technician, and paramedic.

Patient Medical History

It is questionable in some cases as to whether a physician actually completes the process of obtaining a patient's medical history (FIGURE 10-2) when the physician simply draws a diagonal line from the top right to the bottom left of the form and writes through the line "unremarkable" as noted in the following Reality Check. Failure to obtain an adequate patient history and physical examination violates the standard of care owed to the patient. In Foley v. Bishop Clarkson Memorial Hospital,[25] Mr. Foley sued the hospital for the death of his wife. During her pregnancy, the patient was under the care of a private physician. She gave birth in the hospital on August 20, 1964, and died the following day. During July and August, her physician had treated her for a sore throat. Several days after her death, one of her children was treated in the hospital for a strep throat infection. There was no evidence in the hospital record that the patient had complained about a sore throat while in the hospital. The hospital rules required that an H&P had to be written promptly (within 24 hours of admission). No history had been taken, although the patient had been examined several times in regard to the progress of her labor. The trial judge directed a verdict in favor of the hospital. On appeal, the appellate court held that the case should have been submitted to the jury for determination. A jury might reasonably have inferred that if the patient's condition had been treated properly, the infection could have been combated successfully and her life saved. It also might have been reasonably inferred that if an H&P had been taken promptly when she was admitted to the hospital, the throat condition would have been discovered and hospital personnel alerted to watch for possible complications of the nature that later developed. Quite possibly, this attention also would have helped in diagnosing the patient's condition, especially if it had been apparent that she had been exposed to a strep throat infection. The court held that a hospital must guard not only against known physical and mental conditions of patients but also against conditions that reasonable care should have uncovered.

Suspension and Revocation of Licence

Licensing boards have the authority to suspend or revoke the license of a healthcare professional found to have violated specified norms of conduct. Such violations may include procurement of a license by fraud; unprofessional, dishonorable, immoral, or illegal conduct; performance of specific actions prohibited by statute; and malpractice. Suspension and revocation procedures are most commonly contained in a state's licensing act; in some jurisdictions, however, the procedure for suspension and revocation of a license is left to the discretion of the licensing board.

Licensing of Healthcare Professionals

Licensure can be defined as the process by which some competent authority grants permission to a qualified individual or entity to perform certain specified activities that would be illegal without a license. As it applies to healthcare personnel, licensure refers to the process by which licensing boards, agencies, or departments of the several states grant to individuals who meet certain predetermined standards the legal right to practice in a healthcare profession and to use a specified healthcare practitioner's title. The commonly stated objectives of licensing laws are to limit and control admission to the different healthcare occupations and to protect the public from unqualified practitioners by promulgating and enforcing standards of practice within the professions. Health professions commonly requiring licensure include dentists, nurses, pharmacists, PAs, osteopaths, physicians, and podiatrists. The authority of states to license healthcare practitioners is explicit in their regulatory powers. Implicit in the power to license is the right to collect licensing fees, establish standards of practice, require certain minimum qualifications and competency levels of applicants, and impose on applicants other requirements necessary to protect the general public welfare. This authority, which is vested in the legislature, may be delegated to political subdivisions or to state boards, agencies, and departments. In some instances, the scope of the delegated power is made specific in the legislation; in others, the licensing authority may have wide discretion in performing its functions. In either case, however, the authority granted by the legislature may not be exceeded.

The relationship between a physician and a patient, once established, continues until it is ended by the mutual consent of the parties, the patient's dismissal of the physician, the physician's withdrawal from the case, or the fact that the physician's services are no longer required. A physician who decides to withdraw his or her services must provide the patient with reasonable notice so that the services of another physician can be obtained. Premature termination of treatment is often the subject of a legal action for abandonment, the unilateral termination of a physician-patient relationship by the physician without notice to the patient. The following elements must be established in order for a patient to recover damages for abandonment:

Medical care was unreasonably discontinued. The discontinuance of medical care was against the patient's will. Termination of the physician-patient relationship must have been brought about by a unilateral act of the physician. There can be no issue of abandonment if the relationship is terminated by mutual consent or by dismissal of the physician by the patient. The physician failed to arrange for care by another physician. Refusal by a physician to enter into a physician-patient relationship by failing to respond to a call or render treatment is not considered a case of abandonment. A plaintiff will not recover for damages unless he or she can show that a physician-patient relationship had been established. Foresight indicated that discontinuance might result in physical harm. The patient as a result of the physician's abandonment suffered actual harm. Physicians must, as provided in the Hippocratic Oath and codes of ethics, make care decisions for the benefit of their patients and not for their hurt or for any wrong. Terminating a physician-patient relationship must be done within legal guidelines, otherwise the physician can be held liable for abandonment. As noted next, compassion, trust, justice, and respect for patient privacy are all ethical principles and values that are intertwined with law.

Radiology

Medical imaging-related lawsuits include ordering unnecessary tests, physician kickbacks, patient falls, the negligent handling of equipment, improper lead shielding, and misdiagnosis. Lawsuits against radiologic technologists are rare. It has been reported "fewer than nine malpractice payments involving an x-ray technician are awarded each year. In more than half of these cases, payments do not exceed $50,000. These findings come from analysis of x-ray technician malpractice payments reported to the National Practitioner Data Bank over 18 years."[103] Radiology technologists are expected to conduct themselves in a professional manner, respond to patient needs, and support colleagues and associates in providing quality patient care. The radiologic technologist, as with all healthcare professionals who care for patients must within their scope of responsibility, exercise care, discretion, and judgment; assume responsibility for professional decisions; and act in the best interest of the patient. The technologist failed to exercise discretion in the following case by not making sure the patient was secured to the table prior to the examination to prevent the patient from falling.

Misdiagnosis

Misdiagnosis is the most frequently cited injury event in malpractice suits against physicians. Although diagnosis is a medical art and not an exact science, early detection can be critical to a patient's recovery. Misdiagnosis may involve the diagnosis and treatment of a disease different from that which the patient actually suffers or the diagnosis and treatment of a disease that the patient does not have. Misdiagnosis in and of itself will not necessarily impose liability on a physician, unless deviation from the accepted standard of care and injury can be established.

Nurse Practitioners

Nurse practitioners (NPs) are RNs who have completed the necessary education to engage in primary healthcare decision making. A nurse practitioner is a registered nurse working in an expanded nursing role, usually with a focus on meeting primary healthcare needs. NPs conduct physical examinations, interpret laboratory results, select plans of treatment, identify medication requirements, and perform certain medical management activities for selected health conditions. During the course of their studies, they engage in clinical work and select specialties such as cardiology or geriatric care. Moreover, the NP is trained in the delivery of primary health care and the assessment of psychosocial and physical health problems such as the performance of routine examinations and the ordering of routine diagnostic tests. A physician may not delegate a task to an NP when regulations specify that the physician must perform it personally or when the delegation is prohibited under state law or by an organization's own policies. The potential risks of liability for the NP are as real as the risks for any other nurse. The standard of care required most likely will be set by statute. If not, the courts will determine the standard based on the reasonable-person doctrine (i.e., what would a reasonably prudent NP do under the same or similar circumstances). The standard would be established through the use of expert testimony of other NPs in the field. Because of potential liability problems and pressure from physicians, hospitals and physicians' office practices have been historically reluctant to use NPs to the full extent of their training. Such reluctance has been diminishing as the competency of NPs has been continuing to be well demonstrated in practice. Several cases involving NPs are presented here.

Autonomy and Informed Consent

Patients have a right to make their own treatment choices. When there are two or more medically acceptable treatment alternatives, a competent patient has the right to choose which option he or she wants after being informed of the risks, benefits, and alternatives of each option. The physician has a legal, ethical, and moral duty to respect a patient's autonomy and to provide only authorized medical treatment. It is inappropriate for physicians to pursue a treatment alternative other than the one to which their patient has given consent. Unless the patient consents to the physician's recommended treatment approach, the physician may not proceed with that approach even if the physician personally believes the recommended approach to be in the patient's best interests.[29] The doctrine of informed consent is a theory of professional liability independent from malpractice. A physician's duty is to disclose known and existing dangers associated with a proposed course of treatment. The patient in Leggett v. Kumar [30] was awarded $675,000 for pain and disfigurement resulting from a mastectomy procedure. The physician in this case failed to advise the patient of treatment alternatives. He also failed to perform the surgery properly. It is the physician's role to provide the necessary medical facts and the patient's role to make a subjective decision concerning treatment based on his or her understanding of those facts. Before subjecting a patient to a course of treatment, the physician has a duty to disclose information that will enable the patient to evaluate options and the risks attendant to a specific procedure. A failure to disclose any known and existing risks of a proposed treatment when such risks might affect a patient's decision to forgo treatment constitutes a prima facie violation of a physician's duty to disclose. If a patient can establish that a physician withheld information concerning the inherent and potential hazards of a proposed treatment, consent is abrogated. Consent for a medical procedure may be withdrawn at any time before the act consented to is accomplished.

Physician Assistant

Physician assistants (PAs) are healthcare professionals who "practice medicine on a team under the supervision of physicians and surgeons; there are 123,000 certified PAs nationwide, 70% of whom work in specialty practice and 27% working in primary care."[93] They are formally educated to examine patients, diagnose injuries and illnesses, and provide treatment. PAs work in physicians' offices, hospitals, and other healthcare settings.[94] They are subject to the licensing laws within the state they are qualified to practice in. As the role of PAs continues to expand, it is mandatory that they review and understand applicable state licensing laws. In addition, PAs must work within the scope of practice as defined by their employers.PAs are responsible for their own negligent acts. Further, an employer of a PA can be held liable for a PA's negligent acts on the basis of respondeat superior. Physicians who delegate tasks to PAs that licensing laws stipulate a physician must perform can be held liable for assignment of an unauthorized task that results in an injury to a patient. If there is no proof that a PA breached the applicable standard of care for a PA, liability will not accrue to the PA. However, if the physician was negligent in making the assignment to the PA that led to the injury, liability could accrue to the physician. The plaintiff in Cox v. MA Primary and Urgent Care Clinic [95] sued for injuries she allegedly suffered as a result of a PA's failure to diagnose her condition accurately. The patient was eventually diagnosed with cardiomyopathy. A mitral valve repair and mitral valve replacement were ultimately performed. The patient sued the PA for failure to readily diagnose her condition. The Tennessee Supreme Court, after reviewing the case, held: To limit the potential risk of liability for a PA's negligent acts, PAs should be monitored and supervised by a physician. Moreover, guidelines and procedures should also be established to provide a standard mechanism for reviewing a PA's performance.

Patient Infections

Physicians are increasingly at risk for lawsuits related to hospital-acquired infections (HAIs). According to the Centers for Disease Control and Prevention, over 700,000 HAIs occur each year in acute care hospital settings.[36] Surgical site infections are serious, all-too-common occurrences requiring intensive and costly care, as is illustrated in FIGURE 10-5. Both physicians and hospitals are at a greater risk of lawsuits when there are failures to implement and enforce recognized infection control practices, policies, and procedures. The District Court of Appeals of Florida held in Gill v. Hartford Accident & Indemnity Co.[37] that the physician who performed surgery on a patient in the same room as the plaintiff should have known that the infection the patient had was highly contagious. The failure of the physician to undertake steps to prevent the spread of the infection to the plaintiff and his failure to warn the plaintiff led the court to find that hospital authorities and the plaintiff's physician caused an unreasonable increase in the risk of injury. As a result, the plaintiff suffered injuries causally related to the negligence of the defendant. The court held that the plaintiff's complaint does state a cause of action and alleges a duty and a breach of that duty.

Reducing Medication Errors

Reducing medication errors requires an education process through college that includes not only pharmacists but must include physicians, nurses, and patients. A medication error is defined by the National Coordinating Council for Medication Error Reporting and Prevention "as any preventable event that may cause or lead to inappropriate medication use or patient harm while the medication is in the control of the healthcare professional, patient, or consumer. Such events may be related to professional practice, healthcare products, procedures, and systems, including prescribing, order communication, product labeling, packaging, and nomenclature, compounding, dispensing, distribution, administration, education, monitoring, and use." The American Academy of Pediatrics issued guidelines to aid in reducing the number of medication errors in pediatricians' daily practice.[88] Write prescriptions legibly, clearly, and unambiguously. Confirm the patient's correct weight. Fully write out instructions about how to administer the drug; do not use abbreviations for dosage units or for the name of the drug. Avoid vague instructions; specify the exact dosage strength. Avoid the use of terminal zero to the right of the decimal point to minimize 10-fold dosing errors (e.g., use "5 mL" instead of "5.0 mL," which could be misread as 50 mL). Use a zero to the left of a dose that is less than 1 to avoid 10-fold dosing errors (e.g., "0.1 mg" instead of ".1 mg," which could be misread as 1 mg).[89]

Incorrectly Interpreting Physician's Order

Richard J. Pontiff, in Pontiff v. Pecot & Assoc.,[90] filed a petition for damages against Pecot and Associates Rehabilitation & Physical Therapy Services and its employee Kim Morris. Pontiff alleged that Pecot and Associates had been negligent in failing to properly train, supervise, and monitor its employees, including Morris, and that Pecot and Associates was otherwise negligent. Pontiff alleged that employee Morris failed to exercise the degree of care and skill ordinarily exercised by physical therapists, failed to heed his protests that he could not perform the physical therapy treatments she was supervising, and failed to stop performing physical therapy treatments after he began to complain he was in pain. Pontiff claimed he felt a muscle tear while he was exercising on the butterfly machine, a resistive exercise machine. Richard J. Pontiff, in Pontiff v. Pecot & Assoc.,[90] filed a petition for damages against Pecot and Associates Rehabilitation & Physical Therapy Services and its employee Kim Morris. Pontiff alleged that Pecot and Associates had been negligent in failing to properly train, supervise, and monitor its employees, including Morris, and that Pecot and Associates was otherwise negligent. Pontiff alleged that employee Morris failed to exercise the degree of care and skill ordinarily exercised by physical therapists, failed to heed his protests that he could not perform the physical therapy treatments she was supervising, and failed to stop performing physical therapy treatments after he began to complain he was in pain. Pontiff claimed he felt a muscle tear while he was exercising on the butterfly machine, a resistive exercise machine. Legally, under Louisiana law, a physical therapist may not treat a patient without a written physical therapy prescription. Ethically, the Physical Therapists' Code of Ethics, Principle 3.4, states "any alteration of a program or extension of services beyond the program should be undertaken in consultation with the referring practitioner." Because resistive exercises were not set forth in the original prescription, Boulet stated that consultation with the physician was necessary before Pontiff could be advanced to that level. Only in the case where a physician has indicated on the prescription that the therapist is to "evaluate and treat" would the therapist have such discretion. There was no such indication on the prescription written by Dr. deAraujo. Virginia Davis, a physical therapist in private practice and Pecot's expert witness, testified that the program that Pecot designed for Pontiff was "consistent with how she [Pecot] interpreted the prescription for therapy that the physician wrote." Davis, however, did not at any time state that Pecot's interpretation was a reasonable one. In fact, Davis herself would not have interpreted the prescription in the manner that Pecot did. Davis testified only that Pecot's introduction of resistive exercises was reasonable based on her interpretation of the prescription. It is clear that Pecot, as a licensed physical therapist, owed a duty to Pontiff, her client. Pecot's duty is defined by the standard of care of similar physical therapists and the American Physical Therapy Association. If Pecot found the prescription to be ambiguous, she had a duty to contact the prescribing physician for clarification. The appeals court found that the trial court was correct in its determination that Pontiff presented sufficient evidence to show that this duty was breached and that Pecot's care fell below the standard of other physical therapists.

Social Work

Social workers in the hospital setting assist patients and families with psychosocial issues; obtaining insurance coverage; making difficult care decisions; and assisting the patient and family in planning for post-discharge care. As with many professionals, social workers are often overlooked and underused when it comes to the team approach to health care. It has, over the years, been a low priority with hospitals to hire an effective team, adequately staffed to address the myriad of issues that need to be addressed in the delivery of patient care. The National Association of Social Workers Code of Ethics specifies the following six purposes:[107] The Code identifies core values on which social work's mission is based. The Code summarizes broad ethical principles that reflect the profession's core values and establishes a set of specific ethical standards that should be used to guide social work practice. The Code is designed to help social workers identify relevant considerations when professional obligations conflict or ethical uncertainties arise. The Code provides ethical standards to which the general public can hold the social work profession accountable. The Code socializes practitioners new to the field to social work's mission, values, ethical principles, and ethical standards. The Code articulates standards that the social work professional itself can use to assess whether social workers have engaged in unethical conduct. NASW has formal procedures to adjudicate ethics complaints filed against its members. [For information on NASW adjudication procedures, see NASW Procedures for the Adjudication of Grievances.] In subscribing to this Code, social workers are required to cooperate in its implementation, participate in NASW adjudication proceedings, and abide by any NASW disciplinary rulings for sanctions based on it. As with any profession, legal and moral issues concern social workers as well, as noted in the following news clipping.

Refusal to Perform HIV Testing

Stepp, a laboratory staff technician, refused to perform tests on AIDS-contaminated fluids, a choice for which she was eventually terminated by the hospital. The Review Board of the Indiana Employment Security Division upheld the hospital's decision to terminate the technician. The technician appealed the board's decision. The Court of Appeals of Indiana, in Stepp v. Review Board of the Indiana Employment Security Division,[71] held that the technician was dismissed for just cause and that the laboratory did not waive its right to compel employees to perform assigned tasks. The technician had been warned, suspended, and discharged for her refusal to perform the tests. She told her supervisors that she refused to perform the tests because "AIDS is God's plague on man and performing the tests would go against God's will."[72] The technician argued that that the employer hospital failed to provide a safe place to work. Under Section 11(c)(1) of the Occupational Safety and Health Act of 1970 (OSHA) an employer is prohibited from discharging any employee who exercises any right afforded by OSHA, which provides "the right of an employee to choose not to perform his assigned task because of a reasonable apprehension of death or serious injury coupled with a reasonable belief that no less drastic alternative is available." The Supreme Court in Whirlpool Corp. v. Marshall laid out a two-part test.[73] "First, an employee must reasonably believe the working conditions pose an imminent risk of serious bodily injury, and second, the employee must have a reasonable belief there is not sufficient time or opportunity either to seek effective redress from his employer or to apprise OSHA of the danger."[74] Stepp failed to successfully argue both parts of this test. Although Stepp's case involved legal issues for the courts to decide, there are a variety of moral issues for healthcare professionals to consider when refusing to perform tests that are required to determine a patient's diagnosis. Of major applicability in this case is the principle of nonmaleficence—first, do no harm. Suppose for a moment that a technician was working alone at night on a weekend and was the only hospital employee who could perform cardiac enzyme blood tests to determine if the patient had a cardiac event. The blood sample arrives in the laboratory with an AIDS warning label attached. Should the laboratory technician refuse to perform the test, the legal and moral principles of ethics and applicable codes would not support the technician's refusal to perform the tests so urgently needed to determine the patient's treatment regimen.

Student Nurses

Student nurses are entrusted with the responsibility of providing nursing care to patients. When liability is being assessed, a student nurse serving at a healthcare facility is considered an agent of the facility. Student nurses are personally liable for their own negligent acts, and the facility is liable for their acts on the basis of respondeat superior. A student nurse is held to the standard of a competent professional nurse when performing nursing duties. The courts have taken the position that anyone who performs duties customarily performed by a professional nurse is held to the standard of care required of a professional nurse. Every patient has the right to expect competent nursing services even if students provide the care as part of their clinical training.

Failure to Minimize Harm: Unethical Conduct

Sturm, a licensed psychologist who has taught professional ethics since 1985 and who served on the ethics committee of the Oregon Psychological Association for 6 years, testified that testimony about the best interests of children in a custody dispute by a therapist who had not observed both parents' interactions with the children was unethical. Sturm further stated that a psychologist has an obligation to adopt an impartial stance and to avoid actions that would escalate an adversarial nature of the relationship between the parents. Sturm explained that psychologists have "an ethical responsibility to anticipate the possible purposes" behind a request to prepare an affidavit to be used in a custody dispute in order to prevent misuse of the evaluation and agreed that practices such as making evaluative statements about persons or relationships not observed directly are blatantly unethical. The petitioner's affidavit made such statements, and it was not until the show cause hearing that petitioner admitted to her bias toward her patient.[98]

Code of Medical Ethics

The American Medical Association, in the footsteps of Hippocrates, describes the code of ethical conduct for physicians: Although there is no direct punishment for violating the Hippocratic Oath or AMA Code of Medical Ethics, medical malpractice suits often involve a physician's failure to adhere to the oath and/or other applicable medical codes of ethics. Malpractice suits can lead to financial awards to the injured party.

Nurse Assessments and Diagnoses Valid

The defendant physicians in Cignetti v. Camel [30] ignored a nurse's assessment of a patient's diagnosis, which contributed to a delay in treatment and injury to the patient. The nurse had testified that she told the physician that the patient's signs and symptoms were not those associated with indigestion. The defendant physician objected to this testimony, indicating that such a statement constituted a medical diagnosis by a nurse. The trial court permitted the testimony to be entered into evidence. Section 335.01(8) of the Missouri Revised Statutes (1975) authorizes a registered nurse to make an assessment of persons who are ill and to render a nursing diagnosis. On appeal, the Missouri Court of Appeals affirmed the lower court's ruling, holding that evidence of negligence presented by a hospital employee, for which an obstetrician was not responsible, was admissible to show the events that occurred during the patient's hospital stay.

Sexual Harassment

The Ethical Principles of Psychologists and Code of Conduct, on sexual harassment states:Psychologists do not engage in sexual harassment. Sexual harassment is sexual solicitation, physical advances or verbal or nonverbal conduct that is sexual in nature, that occurs in connection with the psychologist's activities or roles as a psychologist and that either (1) is unwelcome, is offensive or creates a hostile workplace or educational environment, and the psychologist knows or is told this or (2) is sufficiently severe or intense to be abusive to a reasonable person in the context. Sexual harassment can consist of a single intense or severe act or of multiple persistent or pervasive acts. The Board of Psychologist Examiners in Gilmore v. Board of Psychologist Examiners revoked a psychologist's license because of sexual improprieties. The Board found that:When a therapist's emotional state overwhelms the rational decision-making process in dealing with clients, we think it demonstrates a significant personal problem. This personal problem would be very likely to cause loss of objectivity and to therefore result in inferior services to a client who is the object of the attraction. Harm to the client in this situation is also likely, because the client is vulnerable, is in a position to be exploited, yet has placed trust in the therapist.The psychologist petitioned for judicial review. She argued that therapy had terminated before the sexual relationships began. The court of appeals held that evidence supported the board conclusion that the psychologist had violated an ethical standard in caring for her patients. When a psychologist's personal interests intrude into the practitioner-client relationship, the practitioner is obliged to seek objectivity through a third party. The board's findings and conclusions indicated that the petitioner failed to maintain that objectivity.

Hippocratic Oath and AMA Code of Ethics Violated

The Thompsons in Scripps Clinic v. Superior Ct.[8] alleged negligent treatment of Patricia Thompson's broken clavicle. A medical malpractice claim was filed against Dr. Thorne and Dr. Carpenter, both of whom were affiliated with Scripps, a group medical practice. At the time the malpractice action was filed, Patricia was no longer being treated by Thorne and Carpenter, but was being treated by other Scripps physicians: Drs. Botte and Froenke for the broken clavicle and Dr. Harkey for endometriosis. Binford, a Scripps employee, sent a letter to the Thompsons informing them that Scripps had been notified about the legal action the Thompsons had taken against the group. Because of the legal action, the Scripps Clinic requested that Health Net immediately terminate the Thompsons with the Scripps Clinic and transfer their membership to another medical group. When Patricia received Binford's letter, she immediately requested Health Net to reassign the couple to a new medical group. Health Net transferred the Thompsons to the San Diego Medical Group. As the result of Scripps's actions, Patricia had to cancel a follow-up visit with Dr. Harkey that had been scheduled near the end of June even though Patricia was still suffering severe pain and bleeding. Before Patricia could be referred to a new gynecologist at University of California, San Diego Medical Group, she had to schedule a visit with her new primary care physician and receive authorization. Patricia's care was also delayed until the San Diego Medical Group received her medical records from Scripps. Scripps contends that it gave adequate notice to the Thompsons. The court disagreed. There was a 2-week hiatus between the time Scripps denied the Thompsons access to its physicians for nonemergency services and the time the Thompsons were assigned to the San Diego Medical Group. The court rejected Scripps's contention the court should have granted summary adjudication of the negligent infliction of emotional distress and breach of fiduciary duty causes of action. The court denied the motion because the Thompsons raised a triable issue of fact as to breach, based upon the declaration of Dr. David Goldstein, the Thompsons' expert. Goldstein declared Scripps breached the standard of care and its fiduciary duty by violating the AMA Code of Medical Ethics 1.3.10 and the Hippocratic Oath, because its policy is retaliatory and "promotes the self-interest of physicians over that of patients."[9] Physicians have both a legal and ethical obligation to attend to their patients' needs. Physicians licensed in Illinois, for example, are specifically prohibited from abandoning their patients.[10] Furthermore, the American Medical Association's Council on Ethical and Judicial Affairs mandates that "once having undertaken a case, the physician should not neglect the patient.

Clinical Nurse Specialist

The clinical nurse specialist (CNS) is a professional registered nurse with an advanced academic degree, experience, and expertise in a clinical specialty (e.g., obstetrics, pediatrics). The clinical nurse specialist functions in a leadership capacity as a clinical role model, assisting the nursing staff to continuously evaluate patient care. The CNS acts as a resource for the management of patients with complex needs and conditions, participates in staff development activities related to his or her clinical specialty, and makes recommendations for establishing standards of care for patients. The CNS functions as a change agent by influencing attitudes, modifying behavior, and introducing new approaches to nursing practice, and collaborates with other members of the healthcare team to develop and implement the therapeutic plan of care for patients.

This chapter presents an overview of how ethics and the law affect a variety of healthcare professions. The ethical codes for each profession demand a high level of integrity, honesty, and responsibility. Codes of ethics are designed to facilitate the resolution of common ethical dilemmas that arise in one's profession.

The contents of codes of ethics vary depending on the risks associated with a particular profession. Ethical codes for psychologists, for example, define relationships with clients in greater depth because of the personal, one-to-one relationship psychologists have with their clients. Laboratory technicians and technologists, on the other hand, generally have little or no personal contact with patients but can have a significant impact on their care. Laboratory technologists, in their ethical code, pledge accuracy and reliability in the performance of tests. The importance of this pledge was borne out in a March 11, 2004, report by the Baltimore Sun, wherein state health officials discovered that a hospital's laboratory personnel overrode testing equipment controls that indicated the HIV test results might contain errors and mailed the test results—which contained both false positives and false negatives—to patients anyway, leaving some patients ignorant of their positive status (preventing them from seeking treatment) and others devastated by the belief that they were HIV positive when they were not.[1]

Failure to Remove Endotracheal Tube

The court in Poor Sisters of St. Francis v. Catron [41] held that the failure of nurses and an inhalation therapist to report to the supervisor that an endotracheal tube had been left in the plaintiff longer than the customary period of 3 or 4 days was sufficient to allow the jury to reach a finding of negligence. The patient experienced difficulty speaking and underwent several operations to remove scar tissue and open her voice box. At the time of trial, she could not speak above a whisper and breathed partially through a hole in her throat created by a tracheotomy. The hospital was found liable for the negligent acts of its employees and the resulting injuries to the plaintiff.

Dispensing and Administration of Drugs

The dispensing of medications is the processing of a drug for delivery or for administration to a patient pursuant to the order of a healthcare practitioner. It consists of checking the directions on the label with the directions on the prescription or order to determine accuracy; selecting the drug from stock to fill the order; counting, measuring, compounding, or preparing the drug; placing the drug in the proper container; and adding to a written prescription any required notations. The administration of medications is the act of giving a single dose of a prescribed drug to a patient by an authorized person in accordance with federal and state laws and regulations. The complete act of administration includes removing an individual dose from a previously dispensed, properly labeled container (including a unit dose container); verifying it with the physician's order; giving the individual dose to the proper patient; and recording the time and dose given. Licensed persons, in accordance with state regulations, may administer medications. Each dose of a drug administered must be recorded on the patient's clinical records. A separate record of narcotic drugs must be maintained. The record must contain a separate sheet for each narcotic of different strength or type administered to the patient. The narcotic record must contain the following information: date and time administered, physician's name, signature of person administering the dose, the balance of the narcotic drug on hand, and the proper recording of any drugs wasted/destroyed. In the event that an emergency arises requiring the immediate administration of a particular drug, the patient's record should be documented properly, showing the necessity for administration of the drug on an emergency basis. Procedures should be in place for handling emergency situations.

Responsibility to the Patient is Paramount

The first responsibility of the physician is to the patient. It overrides all teaching obligations. Handoffs of complex medical diseases to medical students for evaluation outside the attending physician's presence illustrates disregard and disrespect for the rights and needs of the patient, as noted in the following Reality Check. During a follow-up interview after writing the letter above, Mrs. Smith described the many difficulties she encountered while being passed from physician to physician over a span of 15 years. She described her feelings as to how so many physicians lack compassion and empathy, as she sat in their offices with agonizing pain wracking her body from the top of her head to the soles of her feet. This Reality Check illustrates why the attending physician's care for the patient is of paramount (overriding) importance in the delivery of quality patient care. The patient's hope for answers and possible treatment in this Reality Check were dashed. The patient began to lose trust in the medical profession. I listened as she explained to me, "I was troubled as I stood looking at the Code of Medical Ethics that hung so prominently in the physician's waiting room. All the right words were there; only one thing was missing." I asked her what was missing. She looked at me and said emphatically, "Practice."

Incidence and Recognition Malnutrition

The importance of diet is often not given sufficient consideration in healthcare settings, which was noted by J. P. McWhirter and C. R. Pennington in a study conducted to determine the incidence and recognition of malnutrition in a hospital. The results of the study were reported in the British Medical Journal.[57] Although not totally conclusive of what the findings would be in a larger sampling, the results of this study are somewhat perplexing. The abstract of the McWhirter and Pennington study is presented here.

Falsification of Records

The intentional alteration, falsification, or destruction of medical records to avoid liability for one's medical negligence is generally sufficient to show actual malice, and punitive damages may be awarded whether or not the act of altering, falsifying, or destroying records directly causes compensable harm. The evidence in Dimora v. Cleveland Clinic Foundation [18] had shown that the patient had fallen and broken five or six ribs; nevertheless, on examination, the physician noted in the progress notes that the patient was smiling and laughing pleasantly, exhibiting no pain on deep palpation of the area. Other testimony indicated that she was in pain and crying. This discrepancy between the written progress notes and the testimony of the witnesses who observed the patient was sufficient to raise a question of fact as to the possible falsification of documents by the physician to minimize the nature of the incident and the injury of the patient because of the possible negligence of the hospital personnel. The testimony of the witnesses, if believed, would have been sufficient to show that the physician falsified the record or intentionally reported the incident inaccurately in order to avoid liability for the negligent care of the patient. Tampering with records sends the wrong signal to jurors and can shatter one's credibility. Altered records can create a presumption of negligence. The court in Matter of Jascalevich [19] held that "a physician's duty to a patient cannot but encompass his affirmative obligation to maintain the integrity, accuracy, truth, and reliability of the patient's medical record. His obligation in this regard is no less compelling than his duties respecting diagnosis and treatment of the patient because the medical community must, of necessity be able to rely on those records in the continuing care of that patient. The rendering of good care must not be jeopardized or prejudiced by false, misleading, or inaccurate entries in the patient's medical record. A deliberate falsification by a physician of a patient's medical record in order to protect one's own personal interests at the expense of the patient's is regarded as gross malpractice endangering the health or life of his patient."[20] The physician's oath to first do no harm was violated in this case.

Wrong Dosage of a Medication

The nurse in Harrison v. Axelrod [33] administered the wrong dosage of haloperidol to the patient on seven occasions while employed at a nursing facility. The patient's physician had prescribed a 0.5-mg dosage of haloperidol. The patient's medication record indicated that the nurse had been administering doses of 5 mg, which were being sent to the patient care unit by the pharmacy. The nurse had admitted that she administered the wrong dosage and that she was aware of the facility's medication administration policy, which she breached by failing to check the dosage supplied by the pharmacy against the dosage ordered by the patient's physician. The commissioner of the Department of Health made a determination that the administration of the wrong dosage of haloperidol on seven occasions constituted patient neglect.

Nurses: Ethics and Legal Issues

The nurse is generally the one medical professional the patient sees more than any other. Consequently, the nurse is in a position to monitor the patient's illness, response to medication, display of pain and discomfort, and general condition. This section provides an overview of the ethical responsibilities and legal issues of nursing practice. Although nurses traditionally have followed the instructions of attending physicians, physicians realistically have long relied on nurses to exercise independent judgment in many situations.[14] Patients in hospitals, nursing homes, or at home learning to manage a chronic condition are often at their most vulnerable moments. Nurses are the healthcare providers they are most likely to encounter; spend the greatest amount of time with; and often depend on for care. Research is now beginning to document what physicians, patients, other healthcare providers, and nurses themselves have long known: how well we are cared for by nurses affects our health and sometimes can be a matter of life or death. The more than a decade old nursing shortage continues to require hospitals to search for foreign-trained registered nurses. New immigration laws have complicated the hiring and immigration process. Many countries are facing similar shortages, thus raising ethical dilemmas when recruiting foreign nurses from countries with shortages of their own.Higher salaries and incentives have done little to resolve the nursing shortage. The unemployment rate would be expected to provide some incentive for students to enter the nursing profession, but the shortage persists. The Secretary of Health and Human Services (HHS), Kathleen Sebelius, announced in 2013 that $55.5 million in funding was awarded in FY 2013 to strengthen training for health professionals and increase the size of the nation's healthcare workforce.[16] Since that time the shortage of nurses continues to negatively impact healthcare services, and it is only getting worse, as nursing schools are unable to meet the needs of would-be students due to lack of staff and facilities.[17] As one report noted, "There are currently about three million nurses in the United States. The country will need to produce more than one million new registered nurses by 2022 to fulfill its health care needs, according to the American Nurses Association estimates." Hospitals are caught between the proverbial rock and a hard place. The shortage of nurses continues, as one office of government strives to alleviate the shortage while at the same time the Conditions for Participation (COP) for Medicare and Medicaid reimbursement requires that hospitals provide adequate nurse staffing in the present in order to qualify for reimbursement. More specifically, COP regulations provide: Such regulations at best are ambiguous and difficult to enforce except in those instances where state laws, rules, and regulations set specific standards for nurse-patient ratios, such as those that apply in nursing homes and on hospital intensive care units. As noted in an abstract of an article entitled "Enforcement of Hospital Nurse Staffing Regulations Across the United States: Progress or Stalemate?" its authors describe how:

Charting Observations

The patient's care, as well as the nurse's observations, should be recorded on a regular basis. The nurse should comply promptly and accurately with the physician orders written in the record. Should the nurse have any doubt as to the appropriateness of a particular order, he or she is expected to verify with the physician the intent of the prescribed order.

Resident Neglect

The physical therapist in the following case not only failed according to the legal system but also failed to adhere to the professional code of ethics for physical therapists, which provides: In Zucker v. Axelrod,[92] a physical therapist had been charged with resident neglect for refusing to allow an 82-year-old nursing facility resident to go to the bathroom before starting his therapy treatment session. Undisputed evidence at a hearing showed that the petitioner refused to allow the resident to be excused to go to the bathroom. The petitioner claimed that her refusal was because she assumed that the resident had gone to the bathroom before going to therapy and that the resident was undergoing a bladder-training program. The petitioner had not mentioned when she was interviewed after the incident or during her hearing testimony that she considered bladder training a basis for refusing to allow the resident to go to the bathroom. It is uncontroverted that the nursing facility had a policy of allowing residents to go to the bathroom whenever they wished to do so. The court held that the evidence supported resident neglect.

Pharmacy

The practice of pharmacy essentially includes preparing, compounding, dispensing, and retailing medications. These activities may be carried out only by a pharmacist with a state license or by a person exempted from the provisions of a state's pharmacy statutes. The entire stock of drugs in a pharmacy is subject to strict government regulation and control. The pharmacist is responsible for developing, coordinating, and supervising all pharmacy activities and reviewing the drug regimens of each patient. Because of the immense variety and complexity of medications now available, it is impossible for nurses or physicians to keep up with all of the information required for safe medication use. The pharmacist has become an essential resource in modern hospital practice. Medication errors are considered a leading cause of patient injury (FIGURE 9-2). Antibiotics, chemotherapeutic drugs, and anticoagulants are the three categories of drugs responsible for most drug-related adverse events. The prevention of medication errors requires recognition of common causes and the development of practices to help reduce the incidence of errors. With thousands of drugs, many of which look alike or have names that sound alike, it is understandable that medication errors are so common. The more common types of medication errors include prescription errors, transcription errors (often caused by illegible handwriting and improper use of abbreviations), dispensing errors, and administration errors. As noted in the following news clippings, medication errors are all too common occurrences.

Discharge and Follow-up Care

The premature discharge of a patient is risky business. The intent of discharging patients more expeditiously is often a result of a need to reduce costs. As pointed out by Dr. Nelson, an obstetrician and board member of the American Medical Association, such decisions "should be based on medical factors and ought not be relegated to bean counters."[38] As noted in Doan v. Griffith,[39] discharge instructions must be clear and complete. In this case, an accident victim was admitted to the hospital with serious injuries, including multiple fractures of his facial bones. The patient contended that the physician was negligent in not advising him at the time of discharge that his facial bones needed to be realigned by a specialist before the bones became fused. As a result, his face became disfigured. Expert testimony demonstrated that the customary medical treatment for the patient's injuries would have been to realign his fractured bones surgically as soon as the swelling subsided and that such treatment would have restored the normal contour of his face. The appellate court held that the jury reasonably could have found that the physician failed to provide timely advice to the patient regarding his need for further medical treatment and that such failure was the proximate cause of the patient's condition.

Advanced Emergency Medical Technician

The primary focus of the Advanced Emergency Medical Technician is to provide basic and limited advanced emergency medical care and transportation for critical and emergent patients who access the emergency medical system. The minimum skill sets of an AEMT include: airway and breathing, such as insertion of airways that are not intended to be placed into the trachea, tracheobronchial suctioning of an already intubated patient, patient assessment, pharmacological interventions such as establishing and maintaining peripheral intravenous access, establishing and maintaining intraosseous access in a pediatric patient, administration of (nonmedicated) intravenous fluid therapy, administration of sublingual nitroglycerine to a patient experiencing chest pain of suspected ischemic origin, administration of subcutaneous or intramuscular epinephrine to a patient in anaphylaxis, administration of glucagon to a hypoglycemic patient, administration of intravenous D50 to a hypoglycemic patient, administration of inhaled beta agonists to a patient experiencing difficulty breathing and wheezing, the administration of a narcotic antagonist to a patient suspected of narcotic overdose, and administration of nitrous oxide for pain relief.[10]

Emergency Medical Responder

The primary focus of the Emergency Medical Responder is to initiate immediate, lifesaving care to critical patients who access the emergency medical system. This individual possesses the basic knowledge and skills necessary to provide lifesaving interventions while awaiting additional EMS response and to assist higher-level personnel at the scene and during transport. The minimum skill sets of an EMR include airway and breathing, insertion of airway adjuncts intended to go into the oropharynx, use of positive pressure ventilation devices such as the bag-valve-mask, suction of the upper airway, supplemental oxygen therapy, pharmacological interventions, such as use of unit-dose auto-injectors for the administration of lifesaving medications intended for self or peer rescue in hazardous materials situations, medical/cardiac care, use of an automated external defibrillator, trauma care, manual stabilization of suspected cervical spine injuries, and manual stabilization of extremity fractures, bleeding control, and emergency moves.[8]

Emergency Medical Technician

The primary focus of the Emergency Medical Technician is to provide basic emergency medical care and transportation for critical and emergent patients who access the emergency medical system. This individual possesses the basic knowledge and skills necessary to provide patient care and transportation. The minimum skill sets of an EMT include: airway and breathing (e.g., insertion of airway adjuncts intended to go into the oropharynx or nasopharynx); use of positive-pressure ventilation devices such as manually triggered ventilators and automatic transport ventilators; pharmacological interventions by assisting patients in taking their own prescribed medications; administration of over-the-counter medications with appropriate medical oversight, such as oral glucose for suspected hypoglycemia, aspirin for chest pain of suspected ischemic origin, and trauma care, and application and inflation of the pneumatic anti-shock garment (PASG) for fracture stabilization.[9]

Telephone Medicine

There are circumstances which prevent a patient from going to the hospital or directly to a physician's office. When that occurs, the physician or a nurse practitioner may give medical advice over the telephone, which can open them to more scrutiny since the provider would not be examining the patient in person. As noted in the case presented here, a 9-year-old boy died shortly following an after-hours phone call to a physician's office for advice. An on-call NP had responded to the call and rendered her advice to the boy's father, who then described his 9-year-old son's flu-like symptoms, after which the NP had given care instructions to the father. Unaware that his son had diabetes mellitus, the boy died later that evening of ketoacidosis. The parents sued the nurse practitioner, alleging wrongful death of their son due to negligence in diagnosis and treatment of diabetic ketoacidosis. The case was settled against the NP. The key lessons in this case are clear: Many illnesses can mimic others, and noting any subtle differences can be very difficult without actually seeing the patient or obtaining diagnostic tests. Clinicians triaging patients over the phone should err on the side of either bringing the patient into the office to be seen or, if the office is closed, sending them to the ED for evaluation. Clinical staff should carefully and accurately document telephone encounters with patients. It should be noted that "If a physician is associated with an NP (through employment, independent contracting, state-mandated collaboration, consultation, or supervision) who is sued, the physician bears some risk of being sued as well. Physicians thinking about hiring or otherwise collaborating with NPs should understand that lawsuits involving NPs don't even total 1% of all medical malpractice closed claims."[27]

Chapter 10: Physicians' Ethical and Legal Issues

This chapter provides the reader with an overview of common medical errors and ethical issues relative to the practice of medicine. The medical profession has long subscribed to a body of ethical principles. One of Hippocrates' gifts to medicine, among many, was the Hippocratic Oath for physicians, which has been credited to Louis Lasagna, Academic Dean of the School of Medicine at Tufts University in 1964,[3] and has been modified and adopted by various medical schools, such as John Baylor College of Medicine, Johns Hopkins Medical School, and Tufts University School of Medicine. The modern version is as follows, with variations depending on the school:[4]

Patient Treatment

This section focuses on negligence cases that relate to medical treatment and various legal and ethical issues that healthcare professionals encounter when treating patients. Patient treatment is the attempt to restore the patient to health following a diagnosis. It is the application of various remedies and medical techniques, including the use of medications for the purpose of treating an illness or trauma. Treatment can be active, directed immediately to the cure of the disease or injury; causal, directed against the cause of a disease; conservative, designed to avoid radical medical therapeutic measures or operative procedures; expectant, directed toward relief of untoward symptoms but leaving cure of the disease to natural forces; palliative, designed to relieve pain and distress with no attempt to cure; preventive/prophylactic, aimed at the prevention of disease and illness; specific, targeted specifically at the disease being treated; supportive, directed mainly to sustaining the strength of the patient; or symptomatic, meant to relieve symptoms without effecting a cure (i.e., intended to address the symptoms of an illness, but not its underlying cause, as in scleroderma, lupus, or multiple sclerosis, for example). A physician's suggested treatment for an ailment can differ based on a physician's education, training, and practice experiences. Thus, under the two-schools-of-thought doctrine, a physician is not be liable for medical malpractice if he or she follows a course of treatment supported by reputable, respected, and reasonable medical experts. The doctrine is applicable only in medical malpractice cases in which there is more than one method of accepted treatment for a patient's disease or injury. A physician's treatment that results in a patient's injury does not constitute negligence merely because it was unsuccessful in a particular case. A physician cannot be required to guarantee the results of treatment. The mere fact that an adverse result may occur following treatment is not, in and of itself, evidence of professional negligence. Medical practice guidelines are evidence-based best practices that are developed to assist physicians in the diagnosis and treatment of their patients. It should be remembered that best practices are not iron-clad rules. Skillful medical judgment demands that the physician determine how to use best practices and interpret the information. Online Medical Treatment Advisor provides access to the findings of medical specialists to accurately select the best and newest treatments for patients. It is based on the individual patient's characteristics. Online Medical Treatment Advisor assesses each patient's symptoms with a knowledge base created by 1,500 specialist physicians. Online Medical Treatment Advisor includes treatments for 1,200 diseases.

Reporting Child Abuse

Two children were placed in the temporary custody of a foster family. One child was referred to a licensed psychologist for evaluation. After two interviews, the psychologist formed the professional opinion that the child had been sexually molested. Based in part on statements made by the child, the psychologist further believed that the perpetrator of the suspected molestation was the father. At a hearing before the juvenile court, the court determined that the evidence did not support a finding the child had been abused by his father. Custody was returned to the parents. The child's parents subsequently initiated an action for medical malpractice against the psychologist. The psychologist claimed immunity from liability, as provided by a state child abuse reporting statute. The trial court and the parents appealed, arguing that the immunity provisions of the statute do not apply to the psychologist because she was not a "mandatory reporter" under that statute.The Georgia Court of Appeals held that the statute's grant of immunity from liability extended to the psychologist. The evidence did not establish bad faith on the part of the psychologist so as to deprive her of such immunity. The statute provides that any person participating in the making of a report or participating in any judicial proceeding or any other proceeding resulting in a report of suspected child abuse is immune from any civil or criminal liability that might otherwise be incurred or imposed, provided such participation pursuant to the statute is made in good faith. The grant of qualified immunity covers every person who, in good faith, participates over time in the making of a report to a child welfare agency. Proof of negligent reporting or bad judgment is not proof that the psychologist refused to fulfill her professional duties out of some harmful motive or that she consciously acted for some dishonest purpose. There was no competent evidence that the psychologist acted in bad faith.

Failure to Refer for Consultation

When a practitioner determines or should have determined that a patient's ailment is beyond his or her scope of knowledge, technical skill or ability, or capacity to treat with a likelihood of reasonable success, he or she is under a duty to disclose such determination to the patient. The patient should be advised of the necessity of other or different treatments. A physician has a duty to consult and/or refer a patient whom he or she knows or should know needs referral to a physician familiar with and clinically capable of treating the patient's particular ailments. Whether the failure to refer constitutes negligence depends on whether referral is demanded by accepted standards of practice. To recover damages, the plaintiff must show that the physician deviated from the standard of care and that the failure to refer resulted in injury. The California Court of Appeals found that expert testimony is not necessary where good medical practice would require a general physician to suggest a specialist's consultation.[17] The court ruled that because specialists were called in after the patient's condition grew worse, it is reasonable to assume that they could have been called in sooner. The jury was instructed by the court that a general practitioner has a duty to seek consultation by a specialist if a reasonably prudent general practitioner would do so under similar circumstances. A physician is in a position of trust, and it is his or her duty to act in good faith. If a preferred treatment in a given situation is outside a physician's field of expertise, it is his or her duty to advise the patient. Failure to do so could constitute a breach of duty. Today, with the rapid methods of transportation and easy means of communication, the duty of a physician is not fulfilled merely by using the means at hand in a particular area of practice.

Medications

With thousands of brand-name and generic drugs in use, it is no surprise that drug errors are one of the leading causes of patient injuries. Physicians should encourage the limited and judicious use of all medications and should document periodically the reason for their continuation (FIGURE 10-4). They should be alert to any contraindications and incompatibilities among prescription and over-the-counter drugs, and herbal supplements. Medication errors often occur due to administration of the wrong medication to the wrong patient of the wrong dosage at the wrong site by the wrong route, or a combination of the aforementioned errors. The Board of Regents in Moyo v. Ambach [31] determined that a physician had prescribed methaqualone fraudulently and with gross negligence to 20 patients. The Board of Regents found that the physician did not prescribe methaqualone in good faith or for sound medical reasons. His abuse in prescribing controlled substances constituted the fraudulent practice of medicine. Expert testimony established that it was common knowledge in the medical community that methaqualone was a widely abused and addictive drug. Methaqualone should not have been used for insomnia without first trying other means of treatment. On appeal, the court found that there was sufficient evidence to support the board's finding. Damages were awarded in Argus v. Scheppegrell [32] for the wrongful death of a teenage patient with a preexisting drug addiction. It was determined that the physician had wrongfully supplied the patient with prescriptions for controlled substances in excessive amounts, with the result that the patient's preexisting drug addiction had worsened, causing her death from a drug overdose. The Louisiana Court of Appeal held that the suffering of the patient caused by drug addiction and deterioration of her mental and physical condition warranted an award of $175,000. Damages of $120,000 were to be awarded for the wrongful death claims of the parents, who not only suffered during their daughter's drug addiction caused by the physician's wrongfully supplying the prescription, but who also were forced to endure the torment of their daughter's slow death in the hospital.