Health Law Exam 5

Power of Attorney (POA) is where...

one person, known as the principal, delegates another person to act on that persons behalf. They are essentially a super agent.

"Incapacity" or "incompetent" means the...

patient is physically or mentally unable to communicate a willful and knowing health care decision. For the purposes of making an anatomical gift, the term also includes a patient who is deceased.

Rights definition from Black's Law

- A power, privilege, or immunity guaranteed under a constitution, statutes or decisional laws, or claimed as a result of long usage. - A legally enforceable claim of one person against another, that the other shall do a given act, or shall not do a given act.

"Living will" or "declaration" means:

- A witnessed document in writing, voluntarily executed by the principal in accordance with s. 765.302; or - A witnessed oral statement made by the principal expressing the principal's instructions concerning life-prolonging procedures.

Statute 39.201 Reporting Requirements for Child Abuse

- Any person who knows, or has reasonable cause to suspect, that a child is abused, abandoned, or neglected by a parent shall report such knowledge or suspicion to the department in the manner prescribed in subsection (2). - A person who is required to report known or suspected child abuse, abandonment, or neglect and who knowingly and willfully fails to do so, or who knowingly and willfully prevents another person from doing so, commits a felony of the third degree

Statute 415.1036 Reporting Requirements for Immunity

- Any person who participates in making a report under s. 415.1034 or participates in a judicial proceeding resulting therefrom is presumed to be acting in good faith and, unless lack of good faith is shown by clear and convincing evidence, is immune from any liability, civil or criminal, that otherwise might be incurred or imposed.

Statute 456.057 Ownership and control of patient records; report or copies of records to be furnished; disclosure of information.

- As used in this section, the term "records owner" means any health care practitioner who generates a medical record after making a physical or mental examination of, or administering treatment or dispensing legend drugs to, any person; any health care practitioner to whom records are transferred by a previous records owner; or any health care practitioner's employer, including, but not limited to, group practices and staff-model health maintenance organizations, provided the employment contract or agreement between the employer and the health care practitioner designates the employer as the records owner. - Any health care practitioner licensed by the department or a board within the department who makes a physical or mental examination of, or administers treatment or dispenses legend drugs to, any person shall, upon request of such person or the person's legal representative, furnish, in a timely manner, without delays for legal review, copies of all reports and records - The furnis

STATE of Florida, Appellant, v. Jeffrey Singming SUN, Appellee.

- Defendant & Patient was charged with doctor shopping for an addictive pain medication. - Police demanded information from his doctors and they willfully gave them however, the defendant argued that this goes against patient confidentiality because they needed his permission and to provide notice - Records from a pharmacy do not fall under this rule

Statute 362.53 Reporting Requirements for Tuberculosis Control

- Each person who makes a diagnosis of tuberculosis or who treats a person with tuberculosis and each laboratory that performs a test on a specimen that reveals the presence of the tubercule bacilli shall report or cause to be reported such facts to the department in addition to other facts that the department requires by rule to be reported, within a time specified by rule of the department, which period must not exceed 72 hours after the presence of tuberculosis is discovered. - The department shall adopt rules specifying the information that must be included in a report of tuberculosis, the time within which the report must be filed, and where the report must be filed. The department shall consider the need for information, protection of the privacy and confidentiality of the patient, and the practical ability of persons and laboratories to report in a reasonable fashion. Rules adopted by the department may provide for telephonic, electronic, and written reporting and may establish

Statute 709.2201 Authority of agent

- Except as provided in this section or other applicable law, an agent may only exercise authority specifically granted to the agent in the power of attorney and any authority reasonably necessary to give effect to that express grant of specific authority. - General provisions in a power of attorney which do not identify the specific authority granted, such as provisions purporting to give the agent authority to do all acts that the principal can do, are not express grants of specific authority and do not grant any authority to the agent. - Court approval is not required for any action of the agent in furtherance of an express grant of specific authority. - An act performed by an agent pursuant to a power of attorney has the same effect and inures to the benefit of and binds the principal and the principal's successors in interest as if the principal had performed the act.

THE DNRO FORM:

- Form shall be printed on yellow paper and have the words "DO NOT RESUSCITATE ORDER" printed in black and displayed across the top of the form. - Patient identification device is a miniature version of DH Form 1896 and is incorporated by reference as part of the DNRO form.

Statute 765.305 Procedure in absence of a living will

- In the absence of a living will, the decision to withhold or withdraw life prolonging procedures from a patient may be made by a health care surrogate designated by the patient pursuant to part II unless the designation limits the surrogate's authority to consent to the withholding or withdrawal of life-prolonging procedures. - Before exercising the incompetent patient's right to forego treatment, the surrogate must be satisfied that: The patient does not have a reasonable medical probability of recovering capacity so that the right could be exercised by the patient. The patient has an end-stage condition, the patient is in a persistent vegetative state, or the patient's physical condition is terminal.

CEDARS MEDICAL CENTER, INC., Jose R. Gomez, and Jose R. Gomez, M.D., P.A., Appellants, v. Maria RAVELO, Appellee.

- Patient brought medical negligence action against hospital and surgeon. (1) hospital had no duty to obtain patient's informed consent to surgical procedures performed by surgeon, and (2) patient failed to adequately present claim against hospital based on doctrine of corporate negligence. - Ravelo's counsel then proposed jury instruction # 12, "Voluntary Undertaking of Duty" and argued in relation to the consent form that if Cedars undertook the duty, it was under an obligation to do it with reasonable care. - It is the surgeon and not the hospital who has the education, training and experience necessary to advise each patient of risks associated with the proposed surgery. Likewise, by virtue of his relationship with the patient, the physician is in the best position to know the patient's medical history and to evaluate and explain the risks of a particular operation in light of the particular medical history.

Notwithstanding the provisions of this section, an agent may not:

- Perform duties under a contract that requires the exercise of personal services of the principal; - Make any affidavit as to the personal knowledge of the principal; - Vote in any public election on behalf of the principal - Execute or revoke any will or codicil for the principal; or - Exercise powers and authority granted to the principal as trustee or as court-appointed fiduciary.

Earl R. CROWLEY; Home Building Materials, Inc.; and Stephen Padar, M.D., Petitioners, v. Arthur LAMMING, Respondent.

- Required Dr. Padar to bring to his deposition copies of the reports generated for all of the compulsory medical examinations (CMEs) he performed during the three years before his deposition in this case and then to testify to portions of the content of those nonparty CME reports. - Except as otherwise provided in this section ..., such records may not be furnished to, and the medical condition of a patient may not be discussed with, any person other than the patient or the patient's legal representative - In any civil or criminal action, unless otherwise prohibited by law, upon the issuance of a subpoena from a court of competent jurisdiction and proper notice to the patient or the patient's legal representative by the party seeking such records.

Statute 456.057 Ownership and control of patient records; report or copies of records to be furnished; disclosure of information. CONTINUED

- Such records may not be furnished to, and the medical condition of a patient may not be discussed with, any person other than the patient, the patient's legal representative, or other health care practitioners and providers involved in the patient's care or treatment, except upon written authorization from the patient. However, such records may be furnished without written authorization under the following circumstances: ~ To any person, firm, or corporation that has procured or furnished such care or treatment with the patient's consent. ~ When compulsory physical examination is made pursuant to Rule 1.360, Florida Rules of Civil Procedure, in which case copies of the medical records shall be furnished to both the defendant and the plaintiff. ~ In any civil or criminal action, unless otherwise prohibited by law, upon the issuance of a subpoena from a court of competent jurisdiction and proper notice to the patient or the patient's legal representative by the party seeking such recor

Statue 709.2105 Qualifications of agent; execution of power of attorney.

- The agent must be a natural person who is 18 years of age or older or a financial institution that has trust powers, has a place of business in this state, and is authorized to conduct trust business in this state. - A power of attorney must be signed by the principal and by two subscribing witnesses and be acknowledged by the principal before a notary public or as otherwise provided in s. 695.03. (FOUR PEOPLE) - If the principal is physically unable to sign the power of attorney, the notary public before whom the principal's oath or acknowledgment is made may sign the principal's name on the power of attorney pursuant to s. 117.05(14).

Silas E. CHAMBERS, Appellant, v. Walter NOTTEBAUM, Appellee.

- The patient consented to X but the doctor did Y - There was no proof of emergency

Statute 766.103 Florida Medical Consent Law CONTINUED

- The patient would reasonably, under all the surrounding circumstances, have undergone such treatment or procedure had he or she been advised by the physician, in accordance with the provisions of paragraph (a). - A consent which is evidenced in writing and meets the requirements of subsection (3) shall, if validly signed by the patient or another authorized person, raise a rebuttable presumption of a valid consent. - A valid signature is one which is given by a person who under all the surrounding circumstances is mentally and physically competent to give consent.

Statute 765.107 Construction

- This chapter shall not be construed to repeal by implication any provision of s. 766.103, the Florida Medical Consent Law. For all purposes, the Florida Medical Consent Law shall be considered an alternative to provisions of this section. - Procedures provided in this chapter permitting the withholding or withdrawal of life-prolonging procedures do not apply to a person who never had capacity to designate a health care surrogate or execute a living will.

What is the minimum age of the person who may act as the attorney-in-fact for the principal under a power of attorney

18

Rule 1.360, Florida Rules of Civil Procedure

A party may request any other party to submit to, or to produce a person in that other party's custody or legal control for, examination by a qualified expert when the condition that is the subject of the requested examination is in controversy.

A written consent form should be executed when a proposed treatment may involve unusual risk(s) to the patient.

A written consent provides visible proof of a patient's wishes.

Statue 381.0261 Summary of patient's bill of rights; distribution; penalty.

An administrative fine may be imposed by the Agency for Health Care Administration when any health care facility fails to make available to patients a summary of their rights, pursuant to s. 381.026 and this section. Initial nonwillful violations shall be subject to corrective action and shall not be subject to an administrative fine. (IN SHORT: Essentially states that a patient must be given a summary of the statute above, Statue 381.026, and if not THEN you may be sued over that.)

Statue 709.2104 Durable power of attorney.

Except as otherwise provided under this part, a power of attorney is durable if it contains the words: "This durable power of attorney is not terminated by subsequent incapacity of the principal except as provided in chapter 709, Florida Statutes," or similar words that show the principal's intent that the authority conferred is exercisable notwithstanding the principal's subsequent incapacity.

Life/Competent

Durable Power of Attorney & Power of Attorney

Incompetent

Durable Power of Attorney, Health Care Proxy, Living Will and DNRO

Statute 384.25 Reporting Requirements for Sexually Transmissible Diseases

Each person who makes a diagnosis of or treats a person with a sexually transmissible disease and each laboratory that performs a test that concludes with a positive result for a sexually transmissible disease or a result indicative of human immunodeficiency virus (HIV) or acquired immune deficiency syndrome (AIDS) shall report such facts as may be required by the department by rule, within a time period as specified by rule of the department, but in no case to exceed 2 weeks.

Statue 395.1041 Access to emergency services and care.

Every general hospital which has an emergency department shall provide emergency services and care for any emergency medical condition when: Any person requests emergency services and care; or Emergency services and care are requested on behalf of a person by: - An emergency medical services provider who is rendering care to or transporting the person; or - Another hospital, when such hospital is seeking a medically necessary transfer, except as otherwise provided in this section.

SECTION 23. Right of privacy

Every natural person has the right to be let alone and free from governmental intrusion into the person's private life except as otherwise provided herein. This section shall not be construed to limit the public's right of access to public records and meetings as provided by law.

A "right" is a claim of one person against another, based on the fact that the one person has a fundamental & well-founded belief that he/she has legally enforceable claim that the other shall do a given act, or shall not do a given act

False

A "will", also called a "testimony will", is a legally enforceable means for a person to include directions for the provision of healthcare decisions

False

A 'surrogate' is the term that describes a person who is not expressly designated to make decisions on behalf of the principal when the principal is incompetent to make decisions regarding his or her health

False

A durable power of attorney remains valid for 24 hours after the death of the principal

False

A patients medical records may be furnished to, and the medical conditions of a patient may be discussed with, any person who is related to the patient, the patient's legal representative, or other health care practitioners & providers involved in the patient's care or treatment, with or without, written authorization from the patient

False

A physician may be subject to legal liability for negligence, among other things, if the physician discontinues treating a patient after the patient demands that the physician stop that treatment & the patient suffers injury which is caused from the withdrawal of treatment

False

A physician may require a patient to pay all of their medical bills as a condition of access to, or copies of, the patient's medical records

False

A provider of medical services may be criminally prosecuted for failure to act in accordance with the "Florida Patient Bill of Rights"

False

A psychiatrist's notes of the examination of a patient are subject to release by the psychiatrists at written request of the patient if the notes are maintained in the same file as all other health information maintained by the psychiatrist regarding the patient

False

A spouse has the rights to obtain information from, or copies of, a patient's medical records, based solely upon the fact of marriage

False

Consent for treatment may not be given by an affirmative nod of the head by the patient

False

Generally, a hospital is required to obtain consent from a patient for the patient to have an operation in the hospital, just the same as a physician is required to obtain the consent

False

If a detective from the Florida Department of Law Enforcement comes into your office & demands that you tell him what a doctor & patient at your clinic discussed while the doctor was treating the patient, you are required to immediately provide that detective what he demands

False

If a detective from the Florida Department of Law Enforcement comes into your office & demands to see the health records of a patient being treated at your hospital, you are required to provide that detective what he demands

False

Implied consent is determined by some act or silence of a conscious but insolent patient which raises a presumption that consent has been authorized

False

In Florida, a married patient's spouse is always first in order of priority to act as healthcare proxy when the patient has not designated a surrogate

False

May an attorney in fact under a durable power of attorney with no provisions for healthcare, sign a do-not-resuscitate order for the principal? Answer "true" if you say yes. Answer "false" if you say no.

False

The "Florida Patient Bill of Rights" provides Floridians a cause of action against a hospital administrator for refusal to provide emergency medical services

False

Three signatures are all that are required for a power of attorney to be valid

False

a durable power of attorney with specific provisions for healthcare allows an attorney in fact to decide to discontinue life sustaining treatment of the principal in spite of the fact that the document states the principal's instructions to continue to maintain life support

False

Statute 765.401 The Proxy

If an incapacitated or developmentally disabled patient has not executed an advance directive, or designated a surrogate to execute an advance directive, or the designated or alternate surrogate is no longer available to make health care decisions, health care decisions may be made for the patient by any of the following individuals, in the following order of priority, if no individual in a prior class is reasonably available, willing, or competent to act: - The judicially appointed guardian of the patient or the guardian advocate of the person having a developmental disability - The patient's spouse; - An adult child of the patient - A parent of the patient; - The adult sibling of the patient etc.

Any health care decision made under this part must be based on the proxy's informed consent and on the decision the proxy reasonably believes the patient would have made under the circumstances.

If there is no indication of what the patient would have chosen, the proxy may consider the patient's best interest in deciding that proposed treatments are to be withheld or that treatments currently in effect are to be withdrawn.

Consent for treatment of an unconscious patient by a physician in an emergency situation is known as:

Implied Consent

Unconscious patients are presumed under law to approve treatment that appears to be necessary.

It is assumed that such patients would have consented if they were conscious and competent. However, if a conscious patient expressly refuses to consent to certain treatments, such treatment may not be instituted after the patient becomes unconscious. Similarly, conscious patients suffering from emergency conditions retain the right to refuse consent.

Statute 766.103 Florida Medical Consent Law

No recovery shall be allowed in any court in this state against any physician in an action brought for treating, examining, or operating on a patient without his or her informed consent when: - The action of the physician in obtaining the consent of the patient or another person authorized to give consent for the patient was in accordance with an accepted standard of medical practice among members of the medical profession with similar training and experience in the same or similar medical community as that of the person treating, examining, or operating on the patient for whom the consent is obtained - A reasonable individual, from the information provided by the physician, under the circumstances, would have a general understanding of the procedure, the medically acceptable alternative procedures or treatments, and the substantial risks and hazards inherent in the proposed treatment or procedures, which are recognized among other physicians in the same or similar community who perfor

A DNRO may be revoked at any time by the patient, if signed by the patient, or the patient's health care surrogate, or proxy or court appointed guardian or person acting pursuant to a durable power of attorney established pursuant to Section 709.08, F.S.

Pursuant to Section 765.104, F.S., the revocation may be in writing, by physical destruction, by failure to present it, or by orally expressing a contrary intent.

Which of the following are the elements that must be presented by a physician in order to provide the basis for valid "informed consent" of a patient for treatment?

Risks, Benefits and Alternatives

Statute 765.205 Responsibility of the Surrogate

The surrogate, in accordance with the principal's instructions, unless such authority has been expressly limited by the principal, shall: - Have authority to act for the principal and to make all health care decisions for the principal during the principal's incapacity. - Consult expeditiously with appropriate health care providers to provide informed consent... - Provide written, and verbal, consent - Be provided access to the appropriate medical records - Apply for public benefits

Statue 381.026 Florida Patient's Bill of Rights and Responsibilities.

This section shall not be used for any purpose in any civil or administrative action and neither expands nor limits any rights or remedies provided under any other law. (IN SHORT: This is a recommended statue and one that cannot be used to sue a party over)

A competent adult patient has the right to refuse medical treatment even if the result of such refusal is the death of the adult patient

True

A healthcare proxy is a person not expressly designated by the patient, either verbally or in writing, to make healthcare decisions for the patient in the event of the patient's incompetence

True

A hospital administrator may be sued, personally, for directing or allowing a physician or nurse to refuse to provide emergency medical services to a person

True

A medical treatment or procedure, where the patient is touched, and which is preformed without the consent of the patient can be the basis for a claim of battery by the patient

True

A patient's consent, which is recorded in writing, will be considered valid on it's face, but subject to evidence that the patient did not in fact sign the document, or understand, the information provided in order to obtain consent

True

Before exercising the incapacitated patient's rights regarding health care, the proxy must comply with the provisions of the statute that sets out what a surrogate must do in making decisions for the principal

True

Even if a doctor doesn't discuss a patient's health insurance information with the patient, is that health insurance information subject to the statutory medical records privacy law that we have studied. Answer "true" if you say yes. Answer "false" if you say no.

True

If a physician does not report to the appropriate state health authority a sexually transmitted disease of a patient that he/she has treated, that physician may be subject to disciplinary action by the state physician licensing authority

True

Medical records are the property of the healthcare provider & must be kept for the benefit of the patient

True

The signatures required for a power of attorney to be valid and enforceable are: the principals' signature, a notary public's signature and two witness's signatures

True

Verbal authorization from a patient to the owner of the patient's medical records is not sufficient for the owner of those records to divulge the records contents to a person designated by the patient

True

Death

Will

"Principal" means...

a competent adult executing an advance directive and on whose behalf health care decisions are to be made.

"Proxy" means...

a competent adult who has not been expressly designated to make health care decisions for a particular incapacitated individual, but who, nevertheless, is authorized pursuant to s. 765.401 to make health care decisions for such individual.

"Vulnerable adult" means...

a person 18 years of age or older whose ability to perform the normal activities of daily living or to provide for his or her own care or protection is impaired due to a mental, emotional, long-term physical, or developmental disability or dysfunctioning, or brain damage, or the infirmities of aging. - A person who knowingly and willfully fails to report a case of known or suspected abuse, neglect, or exploitation of a vulnerable adult, or who knowingly and willfully prevents another person from doing so, commits a misdemeanor of the second degree

Rights can be made through...

a relationship between parties, a statute and a credited organization such as a hospital or a home health agency

Tacit Consent is determined by some...

act or silence, which raises a presumption that consent has been authorized

"Principal" means...

an individual who grants authority to an agent in a power of attorney.

"Will" means...

an instrument, including a codicil, executed by a person in the manner prescribed by this code, which disposes of the person's property on or after his or her death and includes an instrument which merely appoints a personal representative or revokes or revises another will. (HAS NOTHING TO DO WITH HEALTHCARE AND ONLY DEALS WITH PROPERTY)

"Surrogate" means...

any competent adult expressly designated by a principal to make health care decisions on behalf of the principal upon the principal's incapacity.

"Third person" means...

any person other than the principal, or the agent in the agent's capacity as agent.

The U.S. Supreme Court, in Cruzan v. Director, Missouri Dep't of Health, held that a...

competent adult patient has the right to decline any & all forms of medical intervention, including lifesaving or life-prolonging treatment

"Informed consent" means...

consent voluntarily given by a person after a sufficient explanation and disclosure of the subject matter involved to enable that person to have a general understanding of the treatment or procedure and the medically acceptable alternatives, including the substantial risks and hazards inherent in the proposed treatment or procedures, and to make a knowing health care decision without coercion or undue influence.

Before exercising the incapacitated patient's rights to select or decline health care, the proxy must comply with the provisions of ss. 765.205 [Responsibility of the surrogate] and 765.305, [Procedures in the Absence of a Living Will]

except that a proxy's decision to withhold or withdraw life-prolonging procedures must be supported by clear and convincing evidence that the decision would have been the one the patient would have chosen had the patient been competent or, if there is no indication of what the patient would have chosen, that the decision is in the patient's best interest.

Resuscitation may be withheld or withdrawn from a patient by an emergency medical technician or paramedic

if evidence of an order not to resuscitate by the patient's physician is presented to the emergency medical technician or paramedic. An order not to resuscitate, to be valid, must be on the form adopted by rule of the department. The form must be signed by the patient's physician

Implied consent will generally be presumed when...

immediate action is required to prevent death or permanent impairment of a patient's health.

Informed consent is a...

legal doctrine that provides that a patient has the right to know the potential risks, benefits, & alternatives of a proposed procedure

"Agent" means a...

person granted authority to act for a principal under a power of attorney, whether denominated an agent, attorney in fact, or otherwise. The term includes an original agent, co-agent, and successor agent.

Any person who suffers personal harm as a result of a violation of this section or the rules adopted hereunder may recover, in a civil action against the...

responsible hospital administrative or medical staff or personnel, damages, reasonable attorney's fees, and other appropriate relief.

"Incapacity" means...

the inability of an individual to take those actions necessary to obtain, administer, and dispose of real and personal property, intangible property, business property, benefits, and income.

Verbal consent, if proved, is as binding as written consent because...

there is, in general, no legal requirement that a person's consent must be in writing. However, oral, or physical (like a nod), consent is more difficult to corroborate.

Express Consent can take the form of a...

verbal agreement, or it can be accomplished through the execution of a written document authorizing medical care

Consent, in the healthcare setting, is the...

voluntary agreement by a person who posses sufficient mental capacity to make an intelligent choice to allow a medical procedure and/or treatment proposed by another to be preformed on himself, or herself.

"Durable" means...

with respect to a power of attorney, not terminated by the principal's incapacity.

"Advance directive" means a...

witnessed written document or oral statement in which instructions are given by a principal or in which the principal's desires are expressed concerning any aspect of the principal's health care, and includes, but is not limited to, the designation of a health care surrogate, a living will, or an anatomical gift made pursuant to part V of this chapter.

"Power of attorney" means a...

writing that grants authority to an agent to act in the place of the principal, whether or not the term is used in that writing.