Healthcare Law Test #3

Oregon's Death with Dignity Act

Oregon was the first state to legalize assisted suicide by passing the Death with Dignity Act on October 27, 1997, allowing terminally ill Oregon residents to obtain prescriptions from their physicians for self-administered, lethal doses of medications. The act legalizes physician-assisted suicide but specifically prohibits euthanasia, where a physician or other person directly administers a medication to end another's life. The Oregon Death with Dignity Act allows physicians to prescribe but not administer lethal drugs to the requester, who must be terminally ill with fewer than 6 months to live. The patient must convince doctors that the decision is voluntary, sincere, and not based on being depressed. ~~The waiting period is 15 days. ~~The medication only can be given orally. ~~Two physicians must examine the patient to confirm the diagnosis and prognosis. ~~The patient must have made a witnessed request both orally and in writing. ~~All prescriptions must be reported to the state health department.

AIDS Reporting

Physicians and hospitals must report cases of AIDS, along with the patient's name, to government public health authorities. ~Physicians can let health officials know of a patient's AIDS status to tell their partner (Needle or sexual) if patient refuses to tell partner themselves Physicians and hospitals must report cases of AIDS, along with the patient's name, to government public health authorities. Cases reported to local health authorities also are reported to the CDC, with the patients' names encoded by a system known as Soundex. CDC records come under the general confidentiality protections of the Federal Privacy Act of 1974. However, the statute permits disclosures to other federal agencies under certain circumstances. State can require firefighters and paramedics be tested because of public safety risk

A Physician in the Death with Dignity Act must:

The Death with Dignity Act provides that the attending physician shall: 1. Make the initial determination of whether a patient has a terminal disease, is capable, and has made the request voluntarily. 2. Inform the patient of: A. His or her medical diagnosis; B. His or her prognosis; C. The potential risks associated with taking the medication to be prescribed; D. The probable result of taking the medication to be prescribed; and E. The feasible alternatives, including, but not limited to, comfort care, hospice care, and pain control. 3. Refer the patient to a consulting physician for medical confirmation of the diagnosis, and for a determination that the patient is capable and acting voluntarily.

sentinel event & examples

The Joint Commission encourages healthcare organizations to self-report sentinel events. sentinel event as "a patient safety event (not primarily related to the natural course of the patient's illness or underlying condition) that reaches a patient and results in death, permanent harm, or severe temporary harm. Sentinel events subject to review by The Joint Commission include: ~patient suicide, ~the unanticipated death of a full-term infant, ~discharge of an infant to the wrong family, ~abduction of a patient, ~patient elopement, ~hemolytic reaction to a transfusion, rape, assault, ~invasive procedure on the wrong patient, ~retention of a foreign object in the patient's body, ~radiation overdose. Although The Joint Commission encourages the reporting of sentinel events, it does not require such reporting. It does, however, expect organizations to conduct a root cause analysis when sentinel events do occur. A root cause analysis (RCA) is a chronologic review of an event to identify what, how, why, when, and where an unwanted event occurred in order to prevent reoccurrence of the event.

Unnatural/Suspicious Deaths

Unnatural deaths must be referred to the medical examiner for review. ~~Such cases include violent deaths, deaths caused by unlawful acts or criminal neglect, and deaths that may be considered suspicious or unusual. The medical examiner may conduct an investigation as to the cause of death through an autopsy and report the findings to the police department or prosecutor assigned to the case. The purpose of a medical examiner's investigation is to determine the actual cause of death and thereby provide assistance for any further criminal investigation that may be considered necessary. If a medical examiner determines a death is due to an intentional act, he or she can be called as a witness to testify with regard to the findings if a trial ensues.

physician assisted suicide

a form of active euthanasia in which a doctor provides the means for someone to end his or her own life Usually involves giving a lethal dosage of a medication or prescribing a patient a medication that they take on their own very controversial even today As of recent California, Colorado, DC, Montana, Oregon, Vermont, and Washington are states that have laws legalizing PAS

Saikewicz Case

court approval to withhold treatment of an incompetent Saikewicz Case and Quinlan case brought substituted judgement is legal basis to argue to allow someone on We will substitute the uncompetent person's judgement with someone who knows them Evidence to be presented is in past times person stated they would not have wanted to live that way (comatose, vegetative, severely impaired) For states that don't recognize healthcare proxys

1990 Self-Determination Act

enacted to ensure that patients are informed of their rights to execute advance directives and accept or refuse medical care. Requires health organizations to inform patients of their rights to execute advanced directives and refuse treatment and do DNRs

involuntary euthanasia

occurs when a person other than the incurable person makes the decision to terminate the life of the incurable person (i.e., in cases of an incompetent or nonconsenting competent person). The patient's lack of consent could be a result of mental impairment or a comatose state.

passive euthanasia

occurs when lifesaving treatment (such as a respirator) is withdrawn or withheld, allowing a patient diagnosed as terminal to die a natural death. Passive euthanasia is generally accepted pursuant to legislative acts and judicial decisions

Voluntary Euthanasia

occurs when the suffering, incurable patient makes the decision to die. To be considered voluntary, the request or consent must be made by a legally competent adult and be based on material information concerning the possible ramifications and alternatives available.

Living Will

the instrument or legal document that describes those treatments an individual wishes or does not wish to receive should he or she become incapacitated and unable to communicate treatment decisions

active euthanasia

the intentional commission of an act, such as providing a patient a lethal dose of a medication that results in death. The act, if committed by the patient, is thought of as suicide. Moreover, because in most states the patient cannot take his or her own life, any person who assists in the causing of the death could be subject to criminal sanction for aiding and abetting suicide

Wrongful Conception

- A claim by parents of unexpected child based on allegation that conception resulted from a negligent sterilization procedures or defective contraceptive device -Damages will cover medical bills but won't cover cost of raising the child ~~Children are a "Joy"

1973 Roe v. Wade

- U.S. Supreme Court ruled that there is a fundamental right to privacy, which includes a woman's right to have an abortion -Went to supreme court because Texas had passed a very strict law Based on a constitutional rule - can't have a law that opposes constitution -Trimester Rules

Surrogacy

- a method of reproduction whereby a woman agrees to give birth to a child she will not raise but hand over to a contracted party, who is often unable to conceive a natural child of her own. -A surrogate "may be the child's genetic mother (the more traditional form of surrogacy), or she may, as a gestational carrier, carry the pregnancy to delivery after having been implanted with an embryo. - The surrogate contract is perceived to be illegal when a fee is involved because it is compared with baby selling, which is illegal in all states. -Court decisions and legislation in the United States have historically been split on how they address surrogacy contracts. In the District of Columbia, as of April 7, 2017, surrogacy contracts are legal and enforceable. -Baby is biologically another woman's ~What if carrier won't give baby up? ~A lot of states don't have surrogacy laws ~Don't recognize surrogacy laws as enforcable ~Why? Selling of a human ~States that do: California, Rhode Island, Connecticut, Oregon ~What if adoptive parents decide they don't want the baby?

Eugenic sterilization

- refers to the involuntary sterilization of certain categories of persons described in statutes without the need for consent by, or on behalf of, those subject to the procedure. - forced sterilization -Order someone against their will to get sterilized ~Some states have laws for this! -If you are a criminal convicted of child sexual abuse, if you have certain diseases, intellectual disabilities A legal issue Buck v. Bell ~~Upheld eugenic sterilization, if medical procedures held up.

artificial insemination & two types of it

- the process by which sperm are placed into the reproductive tract of a female, for the purpose of impregnating the female by means other than sexual intercourse. - There are two sources of sperm for impregnation of a female: (1) homologous artificial insemination, which uses the husband's semen to impregnate the female; (2) heterologous artificial insemination (HAI), which uses semen from a donor other than a woman's husband.

1992: Planned Parenthood v. Casey

-14th Amendment upholds abortions performed prior to "viability" of fetus in 7th month. -Almost overturned Roe here ~~~But changes Threw out trimester concept ~~~Now an individual decision & situation ~~~now preemies could stay alive b/c of medicine) - now based on viability (w/med intervention) If fetus is viable = no abortion ~~~Exceptions if medical danger to mother States have a right to protect life of mother and fetus Can have abortion counseling, watching videos, slides, etc.

Birth &Deaths

-All births and deaths are reportable by statute. -Births occurring outside of a healthcare facility should be reported by the legally qualified physician in attendance at a delivery or, in the event of the absence of a physician, by the registered nurse or other attendant. -The physician who pronounces death must sign the death certificate. -Statutes requiring the reporting of births and deaths are necessary to maintain accurate census records.

Abortion: Trimester Rules

-From Roe v. Wade - 1st Trimester: Decision between woman and her physician State can require it be performed only by physician and medical decion of physician - but that's it, states cant go further -2nd Trimester: individual states may govern rules in ways that relate to maternal health Can't have abortion if spouse doesn't agree, until you wait 10 days, etc. Can also regulate medical conditions under which operation is performed -3rd Trimester: States can ban or prohibit any abortion here Unless life threatening condition of the mother (ex: preeclampsia) Common in most states Issue here is now baby could live outside the womb

Legal Reporting Areas

1) Child Abuse: Must Report! (Mandated Reporter). Penalty for not reporting! 2) Elder Abuse (Common, often by a loved one, rarely reported) 3) AIDS/HIV (when found in hospitals/medical centers) 4) Births & Deaths 5) Communicable Diseases: The need for statutes requiring the reporting of communicable diseases is clear: If a state is to protect its citizens' health through its power to quarantine, it must ensure the prompt reporting of infection or disease 6) Adverse Drug Reactions 7) Physician (In)Competency: Health Care Quality Improvement Act (HCQIA) of 1986 (prevent incompetent physicians to hope from state to state) 8) Incident Reporting: contain statements made by employees and physicians regarding a deviation from acceptable patient care. (ex: incidents that have resulted in a patient's serious injury or death, an event such as fire or loss of emergency power, certain infection outbreaks, and strikes by employees). 9) Sentinel Events

Potential Issues with Organ Transplantation/Donation

1- The harvesting and selling of organs 2-who should have first access to freely donated human organs 3-How death is defined ~The time of a patient's death must be determined by a physician in attendance at the donor's death, or a physician certifying death, who shall not be a member of the team of physicians engaged in the transplantation procedure ~However, when permission has been granted for use of a patient's body or organs for the benefit of another or science in general, determination of the point of death becomes critical. 4-When living loved ones refuse to consent ~A surviving spouse may, however, object to such disposition. In such cases, the interest of the surviving spouse or other family member could supersede that of the deceased. ~or if the person originally wanted to do it but changed their mind and either verbally or wrote down retraction

Three Major Issues of Surrogacy

1. What if mother (one who is pregnant/gives birth) doesn't want to give the baby up? 2. What if adoptive parents don't want the baby upon birth? (just change mind or baby has serious illness) 3. If baby is half adopted father/half birth woman or if woman is pregnant and couple takes baby, should records be kept, and should the child have access to those records?

Three Issues in Sterilization

1. Wrongful Birth: --a legal cause of action in some common law countries in which the parents of a congenitally diseased child claim that their doctor failed to properly warn of their risk of conceiving or giving birth to a child with serious genetic or congenital abnormalities. --In a wrongful birth action, the plaintiffs claim that but for a breach of duty by the defendant(s) (e.g., improper sterilization), the child would not have been born. --A wrongful birth claim can be brought by the parent(s) of a child born with genetic defects against a physician who or a laboratory that negligently fails to inform them, in a timely fashion, of an increased possibility that the mother will give birth to such a child, therefore precluding an informed decision whether to have the child. --In a wrongful birth case, on the other hand, a plaintiff need not prove that the doctor's negligence was the medical cause of her child's birth defect. Rather, the test of proximate causation is satisfied by showing that an undisclosed fetal risk was material to a woman in her position; the risk materialized, was reasonably foreseeable and not remote in relation to the doctor's negligence; and, had plaintiff known of that risk, she would have terminated her pregnancy. --The emotional distress and economic loss resulting from this lost opportunity to decide for herself whether or not to terminate the pregnancy constitute plaintiff's damages --In addressing the issue of proximate cause, the court noted: [T]he nature of the wrongful birth does not depend on whether a defendant caused the injury or harm to the child. Rather, the appropriate inquiry was viewed as to whether the defendant's negligence was the proximate cause of the parent's loss of the option to make an informed and meaningful decision either to terminate the pregnancy or to give birth to a potentially defective child. . . . 2. Wrongful Conception: --Wrongful conception refers to a claim for damages sustained by the parents of an unexpected child based on an allegation that conception of the child resulted from negligent sterilization procedures or a defective contraceptive device. --Damages sought for a negligently performed sterilization could include pain and suffering associated with pregnancy and birth, the expenses of delivery, lost wages, father's loss of consortium, damages for emotional or psychological pain, suffering resulting from the presence of an additional family member in the household, the cost and pain and suffering of a subsequent sterilization, and damages suffered by a child born with genetic defects. --Damages will cover medical bills but won't cover cost of raising the child -----Children are a "Joy" 3. Wrongful Life: --legal action in which someone is sued by a severely disabled child (through the child's legal guardian) for failing to prevent the child's birth. --Wrongful life claims are initiated by the parent(s) or child based on harm suffered as a result of being born. The plaintiffs generally contend that the physician or laboratory negligently failed to inform the child's parents of the risk of bearing a genetically defective infant and hence prevented the parents' right to choose to avoid the birth. --Because there is no recognized legal right not to be born, wrongful life cases are generally not successful. --A fundamental principle of law is that human life is valuable, precious, and worthy of protection. A legal right not to be born rather than to be alive with deformities cannot be recognized. Wrongful birth is based on the premise that being born, and having to live, with the affliction is a disadvantage and thus a cognizable injury. --The injury sued upon is the fact that the child was born; she bears the disability and will bear the expenses only because, but for the alleged negligence of Magat, her mother was unable to terminate the pregnancy and avert her birth. --Unless a judgment can be made based on reason, rather than the emotion of any given case, that nonlife is preferable to impaired life—that the child-plaintiff would, in fact, have been better off had he or she never been born—there can be no injury, and if there can be no injury, whether damages can or cannot be calculated becomes irrelevant.

DNR (do not resuscitate)

A client order stating that no extraordinary measures, or limited extraordinary measures, will be taken to prevent death. -Healthcare agent can sign/authorize a DNR in case of people being incompetent, in event of know DNR, Advanced Directive or guardian, best interest of patient is enacted DNR orders must comply with statutory requirements, be of short duration, and be reviewed periodically to determine whether the patient's condition or other circumstances (e.g., change of mind by the patient or family) surrounding the no-code orders have changed. For Example, CPR is not used. Also known as "No Code".

Massachusetts 2007:

Barred protestors near abortion clinic - 35 foot barrier made Went to Supreme Court where this was deemed unconstitutional

Cruzan v. Missouri

Mary Beth Cruzan went into a coma after being involved in a car accident. When her parents wished to take her off of life support, the state prevented them from doing so without court approval. Result: While individuals may refuse medical treatment, one may not refuse for another on the basis of bad judgment. The state's attempt to save human life is constitutional. There is no guarantee that family members would act in the best interest of a patient. Families must have clear and convincing evidence that this is what the patient wants. - 14th A. - Due Process Results of these cases Some states have a living will Write out wishes that if you become incompetent, you can decided what happens, after signed and notarized, wishes must be respected Some have durable power of attorney w/ healthcare proxy Someone if put in charge to be one's agent to make a decision they (original person) would have made Healthcare agent can sign/authorize a DNR Massachusetts - 1981 Massachusetts case to enact healthcare proxy - man's brain was working minimally, could breath on own, but no cognitive functioning

Advanced Directives

are instructions given by individuals specifying what actions should be taken for their health in the event that they are no longer able to make healthcare decisions as a result of illness or incapacity. Patients have a right to make decisions about their health care with their physician. They may agree to a proposed treatment, choose among offered treatments, or say no to a treatment. Patients have this right even if they become incapacitated and are unable to make decisions regarding their health care. They both provide that a person may state in advance the kinds of medical care that he or she considers acceptable or not acceptable. The patient can appoint an agent, or a surrogate decision maker, to make those decisions on his or her behalf.

Dr. Jack Kevorkian & his connection to PAS

-Michigan doctor -became a controversial figure when he announced in October 1989 that he had developed a device that would end one's life quickly, painlessly, and humanely. (Medicine) - In 1990 assisted a 54 yr old alzheimer's patient commit suicide ~~December 1990 charged with first degree murder ~~Charge dropped because Michigan had no law against it, but was ordered to not do it again or give advice on how to do it ~~~Broke this and advised others -Kevorkian charges multiple times with murder, but then cases dropped because of Michigan's lack of laws against PAS ~~~The Michigan House, however, approved legislation placing a temporary ban on assisted suicide on November 24, 1992. The Senate approved the temporary ban after Kevorkian assisted a sixth terminally ill patient to end her life. On December 15, 1992, Michigan Governor John Engler signed the law just hours after two more women committed suicide with Kevorkian's aid. ~~The new law, which became effective on April 1, 1993, made assisting suicide a felony punishable by up to 4 years in prison and a $2,000 fine ~~The new law apparently raised constitutional questions and was challenged by the Civil Liberties Union of Michigan because of the claim that it fails to recognize that the terminally ill have the right to end their lives painlessly and with dignity. Kevorkian faced prosecution for murdering two people and for assisting in the suicides of three others. ~~As a result, he appealed to a Michigan Supreme Court ruling that found there is no right to assisted suicide. ~~The U.S. Supreme Court rejected Kevorkian's argument that assisted suicide is a constitutional right -In 1999, he was convicted of second-degree murder and was released on June 1, 2007, after serving 8 years of the 10- to 25-year sentence for physician-assisted suicide. ~~After live on TV PAS of a man with Lou Gehrig's, actually injected medication - Impact on the law: brought the idea of PAS and self-determination to the attention of the public and the legal system; showed that people should have a right to choose if they live or die when they are very ill (self-determination)

Concerns over Artificial Insemination

-Multiple births -Sperm Bank - kids want to know who biological father is ~Most states protect privacy, some sperm donors allow their info to be released Someone else's sperm/embryo accidently gets implanted into wrong person -What do we do with unused sperm/embryo mixes ~Don't want more children ~Divorce cases - is this property? ~Give to another woman?

Sterilization

-Sterilization is a surgical technique that is used to prevent a male or female from being able to produce offspring. -Sterilization most often is accomplished by either a vasectomy for men or a tubal ligation for women. -Usually Voluntary -Not usually a legal issue unless negligence or problems occur (impregnation after a sterilization (meaning it was botched)_ -May also be for therapeutic sterilization (one performed to preserve life and health)

How do you define death? (Harvard 3)

-Traditionally, the definition of death was"cessation of respiration, heartbeat, and certain indications of central nervous system activity, such as respiration and pulsation." -Currently, however, modern science has the capacity to sustain vegetative states, maintain heart, and breathing - NOW court that has ruled on the question has recognized that the irreversible cessation of brain function constitutes death. Brain Death Criteria -The Harvard Ad Hoc Committee on Brain Death published a report in 1968 describing the characteristics of a permanently nonfunctioning brain, a condition it referred to as "irreversible coma," now known as brain death: 1. Patient shows total unawareness to external stimuli and unresponsiveness to painful stimuli. 2. No movements or breathing: All spontaneous muscular movement, spontaneous respiration, and response to stimuli are absent. 3. No reflexes: Fixed, dilated pupils; no eye movement even when hit or turned, or when ice water is placed in the ear; no response to noxious stimuli; no tendon reflexes.

Substituted Judgement

-We will substitute the uncompetent person's judgement with someone who knows them -Evidence to be presented is in past times person stated they would not have wanted to live that way (comatose, vegetative, severely impaired) -For states that don't recognize healthcare proxys -Substituted judgment generally is a decision made by a person on behalf of a person who is incompetent and unable to decide for himself or herself. -Substituted judgment with regard to guardianship is the standard that directs the decision making of a guardian.

Durable Power of Attorney

-a legal device that permits one individual, known as the principal, to give to another person, called the attorney-in-fact, the authority to act on his or her behalf. -The attorney-in-fact is authorized to handle banking and real estate affairs, incur expenses, pay bills, and handle a wide variety of legal affairs for a specified period. -The power of attorney may continue indefinitely during the lifetime of the principal so long as that person is competent and capable of granting power of attorney. -If the principal becomes comatose or mentally incompetent, the power of attorney automatically expires, just as it would if the principal dies. -If you name someone in DURABLE power of attorney, person can stay as POA ~~~~If no DPOA - you must get court orders and notes from doctors

Healthcare Proxy

-a legal document that allows a person to appoint a healthcare agent to make treatment decisions in the event he or she becomes incapacitated and is unable to make decisions for him or herself. -Slightly more flexible -A lot of decisions can be made -Can move patient to different hospitals -Get second opinions -Massachusetts has this! (1981 w/durable power of attorney)

partial birth abortion

-a method of abortion in which the fetus is partially delivered before its life is terminated and it is removed from the mother's body -In 2003, Bush signed first law banning partial-birth abortions ~~~Went up to Supreme Court and reversed because it made no exception to save health of mother

surrogate decision maker

-an agent who acts on behalf of a patient who lacks the capacity to participate in a particular decision. -A healthcare agent's rights are no greater than those of a competent patient; however, the agent's rights are limited to any specific instructions included in the proxy document. -An agent's decisions take priority over any other person except the patient. The agent has the right to consent or refuse to consent to any service or treatment, routine or otherwise; to refuse life-sustaining treatment; and to access all of the patient's medical information to make informed decisions. -Where the surrogate attempts to establish what decision the patient would have made if that patient were competent.

Uniform Anatomical Gift Act

A law permitting a person of legal age and sound mind to give all or any part of his body to take effect upon his/her death or gives the right to another. The statute provides that when only a part of the body is donated, custody of the remaining parts of the body shall be transferred to the next of kin promptly after removal of the donated part. A donation by will becomes effective immediately on the death of the testator, without probate, and the gift is valid and effective to the extent that it has been acted on in good faith. This is true even if the will is not probated or is declared invalid for testimonial purposes. The Act sets a regulatory framework for the donation of organs, tissues, and other human body parts in the US. The UAGA helps regulate body donations to science, medicine, and education

adverse drug reaction

Adverse drug reactions (ADRs) are unwanted or harmful reactions that occur as a result of the administration of a drug or combination of drugs. Pharmacies must maintain and report adverse drug reactions to the Food and Drug Administration (FDA). MedWatch is the FDA's "program for reporting serious reactions, product quality problems, therapeutic inequivalence/failure, and product use errors with human medical products, including drugs, biologic products, medical devices, dietary supplements, infant formula, and cosmetics."

Quinlan Case

Established that surrogates had the moral and legal right to decide if life-sustaining ventilators should be removed from a patient [New Jersey Supreme Court] -Quinlan case was the first to significantly address the issue of whether euthanasia should be permitted when a patient is terminally ill. -The Quinlan court, relying on Roe v. Wade, announced that the constitutional right to privacy protects a patient's right to self-determination.

right to self-determination

announced that every human being of adult years and sound mind has the right to determine what shall be done with his or her own body.