Health Science Ethics - GMS 6871-005 - Chapter 7 - Liability and Health Care: Legal Aspects of Health Care

False Imprisonment

Holding a patient against his or her will is considered false imprisonment. This includes the use of restraints for nonmedically approved reasons

Fraud

-Deceitful practices that deprive someone of his or her rights -False promises, upcoding, and insurance fraud are only a few example -Medicaid and Medicare fraud has also become quite common and costly to taxpayers.

Think Honestly

-Honest dealings with patients, coworkers, employers, and even the legal system will help prevent future complications. -Imagine a physical therapy assistant overhearing a physical therapist promising a stroke victim that therapy will "have them up on their feet in no time." This could be considered fraud.

Observe Naturally

-Keeping track of observations and taking them all into consideration can help prevent legal action. -For instance, if a nursing assistant observes that a patient is frequently coughing during meals, he or she can report this to the speech therapist on staff. An evaluation might determine that the patient has a choking risk and should have diet changes recommended. -Being proactive can prevent legal action against the healthcare facility.

medical office receptionist scope of practice

-Receiving patients -Making sure patients sign in and that their information is promptly removed from the sign-in area for confidentiality purposes -If the patient is new, distributing patient information forms, including the HIPAA forms, and having the patient complete and return them -Making patient appointments

Embezzlement

-The conversion to your own use of property that you can rightly access but do not own -Generally, this involves an employee taking money from business accounts to which the employee has rightful access. -not the same as stealing because in cases of embezzlement, the employee has legal access to the funds, but chooses to take some for his or her personal use.

Commerce Clause

-allows the gov't to create certain programs that regulate economic activity -forcing citizens to purchase insurance oversteps the bounds of this clause (2011)

Protecting yourself

-being aware of the various ways you could be held liable as a legal professional. -For example, if you send a fax containing confidential information to anyone, you put yourself at risk of breaching confidentiality. To prevent this, be sure a consent form has been signed and dated by the patient

Constitutional Law

-considered the highest law in the country -outlines the rights and responsibilities of the federal government, state governments, and individuals -any new law written must comply with this (court decided forcing US citizens to purchase healthcare insurance was unconstitutional since went against Consitution's Commerce Clause)

statutory law can be divided into what cateogories?

-criminal -civil

defenses a healthcare professional can use

-denial -assumption of risk -comparative and contributory negligence -statute of limitations -borrowed servant

statutes of limitations

-determine the number of years a plaintiff has to file a claim of negligence. -In medical malpractice cases, the statute of limitations begins at the time the injury is discovered. -States have their own statutes of limitations, but in general they are 3 to 7 years.

Explain what the PYTHON principle is and what it means to healthcare professional

-developed by Carla Stanford -stands for Protect Yourself; Think Honestly; Observe Naturally

duty

-established when a healthcare professional agrees to treat a patient. -The standard of care for healthcare professionals is determined by what other members of the same profession would do in a similar situation

Controlled Substances Act

-ex of administrative law -part of the comprehensive drug abuse prevention and control act of 1970 -gives authority to the Drug Enforcement Agency and the Department of Health and Human Services to categorize drugs into schedules that determine who is authorized to administer and obtain those drugs

Roe vs Wade

-ex of common law -federal court case that established common law right to privacy regarding reproductive rights for women

Good Samaritan Laws

-ex of statutory law -specific to states and generally provide immunity to ordinary citizens who assist victims in an emergency

Administrative Law

-federal gov't creates agencies that have the right to implement certain laws (aka admin laws) -ex: FDA, Office of Civil Rights (HIPAA), and Dep't of Health and Human Services -ex: Controlled Substances Act

Unintentional Torts components

-four components -duty -breach of duty -causation -damages

Explain the borrowed servant rule

-generally used by employers that have temporary workers or medical professionals who fill in for other medical professionals on leave. -If a plaintiff sues a healthcare facility regarding the actions of a temp, the facility might utilize the borrowed servant rule and escape liability for injury caused by the temporary employee.

Assault and Battery

-historically assault meant the threat of harm, battery the actual physical harm -currently, most states consider both the threat and the act to come under the single term of assault, which includes unwanted touching -can be avoided by obtaining written or (more difficult to prove in court) oral consent -If a patient agrees to a procedure, he or she must be told if there will be any changes to that procedure prior to the change (e.g., additional tissue removed, change of surgeon).

Invasion of Privacy

-intrusion into the private life of another person without medical cause -is different than a violation of HIPAA's Privacy Rule because invasion of privacy extends farther than protected health information

Upcoding

-involves charging insurance companies for a procedure that is reimbursed at a higher rate than the procedure that was actually performed. -example: if a therapist meets with several patients in a group but bills the sessions individually, rather than as a group therapy session. Individual therapy sessions are generally reimbursed at a higher rate than group sessions

Statutory Law

-laws passed by federal and state governments -start as bills and must be approved by both Senate and House and then approved by president or governor -must comply with the constitution -ex=Good Samaritan Laws and mandatory reporting laws

scope of practice

-limitations, rules, and professional protocol that control what is proper within a given field. -The boundaries of what you can and cannot do and the regulations (as determined by your profession, your state, and the federal government) that dictate these boundaries

denial

-most commonly used defense in cases of negligence. -The defendant does not claim that damages did not occur, but rather that there was another explanation or cause for the damage

Defamation of Character

-occurs when a person's reputation is damaged by the spreading of untrue information. -While gossiping about coworkers or patients is unethical, if the information is true, it is not defamation of character. -Defamation of character has two subcategories: slander and libel. Slander is spoken, and libel is written

liability insurance

-provides financial protection from claims that arise from patients who believe they have been a victim of medical malpractice while under the care of a healthcare professional -Some professional organizations, such as the American Association of Medical Assistants and the American Speech-Language and Hearing Association, offer liabil- ity insurance at a group rate for members

Causation

-requires the injury to be closely related to the healthcare professional's negligence. -The patient is required to prove that the healthcare professional's breach was the direct cause of the injury that resulted. -the patient must prove that there were no other circumstances that could have caused the same injury

Common Law

-set by the judicial branch -outcome of court cases establishes common law -ex: Roe vs Wade -ex: Oregon Supreme Court and right to choose method of death

comparative negligence

-states that the plaintiff's actions helped cause the injury. -The difference is that the plaintiff can recover damages based on the amount of the defendant's fault. So, if $100,000 was determined to be the monetary damages and the physician was 60% at fault, the patient could receive $60,000

Breaches of duty fall under three general categories. List the three and define them.

-the failure of a healthcare professional to act as any ordinary and prudent healthcare professional within the same community would act in similar circumstances. -Misfeasance -Nonfeasance -Malfeasance

contributory negligence

-the patient or others are determined to be fully or in part responsible for the injury. -they are not able to receive monetary compensation for damages.

Doctrine of res ipsa loquitur

-the thing speaks for itself -if the negligent act is so obvious that there could be no other responsible party, the burden of proof shifts to the defendant (medical practitioner) who must prove that he or she is not responsible for the injury

assumption of risk

-the understanding that certain procedures can result in commonly known injuries. -When patients give permission for certain procedures or refuse the medical advice of healthcare professionals, they are usually asked to sign consent forms to show that they understand the risks involved.

Discuss the differences between unintentional and intentional torts.

-wrongs against individuals = torts -intentional include assault and battery, false imprisonment, defamation of character, invasion of privacy, fraud, and embezzlement -unintentional include neglect

List the four sources of law in the U.S. justice system

Constitutional law Common Law Administrative Law Statutory Law

what healthcare component does the Office of Civil Rights oversee?

HIPAA

Nonfeasance

a failure to act (e.g., forgetting to turn a patient, which results in bed sores)

___________ actions are crimes against society, while ___________ actions are crimes against one or more indi- viduals.

criminal civil

Assault and battery, false imprisonment, and embezzlement are examples of ___________ ___________

intentional tort

Respondeat superior means ___________ the ___________ ___________

let the master answer -states that employers are responsible for employee's actions -includes training of employees, oversight of medical care, and financial compensation to injured parties as appropriate

Malfeasance

negligence with mal-intent (e.g., holding a noncooperative patient too tightly when drawing blood, which results in bruising)

Misfeasance

occurs when a mistake is made (e.g., giving the patient the wrong medication)

Damage that is caused to a person's reputation through spoken or written word by spreading untrue information is called ___________ or ___________

slander, libel

Damages

the actual injuries caused by the defendant for which compensation is due