Law and ethics chapter 5, 6, 7, 8

concepts of liability

liability-all competent adults are liable or legally responsible for their actions on the job and in private lives

EMTALA, Emergency Medical Treatment and Active Labor Act

"anti-dumping", TJC must have a system to asses the injured, hospital not obligated to treat everyone, voluntary admission contract, TJC-determine if patient is stable

7 reasons why people sue

1.) cancer misdiagnosis/failure or delay 2.) birth injury/negligent maternity care 3.) wrongful diagnosis or misdiagnosis of a negligent fracture or trauma 4.) delay in diagnosis or failure to consult in timely manner 5.) medication errors 6.) malpractice 7.) failure to obtain a informed consent

7 Patient Privacy Rights

1.) right to protection 2.) right to access 3.) right to amend 4.) right to request privacy restrictions 5.) confidential communication 6.) right to an accounting of disclosure 7.) right to file a complaint

Conditions for which Res Ipsa loquitur can be used

1.) the act must be under defendants control 2.) The patient must not have contributed to the act 3.) It must e apparent that the patient would not have been harmed if reasonable care was used

Types of defense

1.)denial of wrongdoing, 2.) affirmative defense - contributory negligence -comparative negligence -assumption of risks - emergency

What amendments have to do with privacy ?

1st, 3rd, 4th, 5th, 9th and 14th

fiduciary duty

A physicians obligation to his or her patient, based on trust and confidence.

doctrine of professional discretion

A principle under which a physician can exercise judgment as to whether to show patients who are being treated with emotional or mental conditions their records.

4 elements of negligence claim

Duty-The person charged owed a duty of care to the accuser. Dereliction-The health care provider breached the duty of care to the patient. Direct cause-The breach of duty of care to the patient caused the injury. Damages-There is a legal recognized injury to the patient.

Coverd entity examples

HIPAA Covered Entities •Hospitals/academic medical centers. •Nursing homes •Hospices •Pharmacies •Physician practices •Dental practices •Chiropractors

Routine release of information

Insurance claims, transfer to another physician, or use in a court of law under deuces tecum.

(QI) quality improvement/assurance

Methods used to manage risks. A program of measures taken by health care providers and practitioners to uphold the quality patient care

Phases of lawsuit

Pleading phase, interrogatory or pretrial discovery phase, trial phase, appeals phase

Arbitration

The method of settling disputes in which opposing parties agree to abide by the decision of an arbitrator. an arbitrator is chosen by the court or by the American Arbitration Association or each party selects an arbitrator and the two arbitrators select a third party

Risk Management

The taking of steps to minimize danger, hazard, and liability. example: providing written job descriptions, providing office procedures.

Res Judicata

The thing has been decided, cannot have a case retried between parties if it has already been legally resolved

interrogatory

a written set of questions requiring written answers from a plaintiff or defendant under oath

4 Cs of malpractice prevention

caring, communication, competence, charting

5 Cs of documentation

concise, complete, clear, correct, chronologically ordered

consents vs authorizations

consents-patient gives expressed or implied consent to be treated authorizations- release of medical records

Affirmative defenses contributory negligence vs. comparative negligence

contributory- plaintiff contributed to injury comparative-reduction in damages based on % of fault

interrogatory or pretrial phase

court sets trial date, can change court date or location, subpoena are issued, depositions, interrogatory, pretrial conference, at any point before the case comes to trial an out of court settlement may be reached

professional liability insurances

covers costs of defending a medical malpractice lawsuit up to policy limit, usually required to obtain hospital privileges or work in HMO

Subpoena Duces tecum,

demands appearance

Subpoena Ad testifcandum

demands appearance with records

Denial defense

denial of wrongdoing

witness testimony

fact- witness provides facts he or she has observed. expert- experts in particular fields have the education, skills, knowledge and experience to give expert witness

nonfeasance

failure to act when one should, nurse takes time to call code blue

damages awarded

general compensatory-to compensate for injuries or losses due to violation of patients rights. special compensatory- to compensate for losses not directly caused by the wrong doing. consequential- to compensate for losses caused indirectly by a product defect. punitive- To punish the offender nominal-To recognize that rights of thee patient were violated, though no actual loss was provided

Emergency defense

good Samaritan statutes, health care worker aids in an emergency situation that was not caused by the defendant-standard of care

Physician liability as an employer

grounds, building, automobiles, employee safety

misfeasance

lawful act improper manner

doctrine of informed consent

legal basis for informed consent, usually outlined in a states medical practice acts.

Respondeat Superior

let the master speak

standard of care

level of performance expected of health care worker carrying out duties, a specialist is not held to the same standard of care as a general practitioner

medical record vs medical health record

medical record medical health record

retention laws

medical records are kept between 2-7 years

Hearsay rule and how to overcome it.

medical records are not written under oath therfore hearsay, it can be overcome by using it as a business record, supports bill

Mediation

method of settling disputes without going to court. voluntary, mediator is a neutral third party, mediator cannot impose a solution on parties involved

who can and cannot give informed consent

minors- except those who are emancipated, married or mature. mentally incompetent persons, persons speaking limited or no English

informed consent

must contain, propose modes of treatment, why, risks involved, available alternatives, risks of alternatives, risks if treatment is refused

unintentional torts

negligence-malpractice Res Ipsa Loquitur-the thing speaks for itself Respondeat Superior-Vicarious liability Corporate negligence Failure to warn

alternative dispute resolutions

neutral Mediation, Arbitration

duty of care

obligations of health care workers to patients and non patients

assumption of risks defense

patient knew risks beforehand and accepted treatment

Technical defenses

release of tortfeaser, Res judicata, Statue of limitations

pleading phase

summons is send, defendant must respond within window of time or can lose case by default, defendant can also file a cross-complaint

deposition

sworn testimony given and recorded outside the courtroom during the pretrial phase of a case

When plaintiff sues health care practitioner, what is the burden of proof

the plaintiff

Res Ipsa Loquitur

the thing speaks for itself. Example of cases, leaving foreign objects in patients, accidently burning or injuring a patients while they are anesthetized, damaging healthy tissue, causing infection

release of tortfeasor

the victim cannot sue the physician unless the right to do so was reserved on the release

medical records ownership

they are owned by the facility that created them, patient owns the information.

malfeasance

totally wrongful

Statute of limitation

vary from state to state, generally spiecifies one to six years, with two years most common, may be modified for minors or people who are legally insane

False claim act

•Allows individuals to bring civil actions on behalf of the Federal government for false claims •Qui tam is a Latin term that is commonly applied -Whistleblowers may share in any court-awarded damages

covered entity

•Health Care providers and clearinghouses that transmit HIPAA transactions electronically, and must comply with HIPAA standards and rules. •Any provider who might bill for Medicare and/or Medicaid and who have at least 50 patients.

HIPPA

•Health Insurance Portability and Accountability Act -A federal law passed in 1996 to protect privacy and other health care rights for patients.

anti-kickback law

•Knowingly and willfully receiving or paying anything of value to influence referral of federal health care program business is against the law •Possible punishment: -Fines -Prison term -Loss of participation in federal programs

Office of inspector general

•Oversees enforcement of: -Federal False Claims Act -Federal Anti-Kickback Law -Stark Law -Criminal Health Care Fraud Statute

stark law

•Physicians or members of their immediate family with a financial interest are restricted from referring patients to entities owned by the physician •Applies to Medicare and Medicaid programs

Criminal health care fraud statute

•Prohibits knowingly or willingly executing a scheme, or attempting to execute a scheme, with the intent to: -Defraud any health care program -Obtain by false pretenses, representations, or promises any money or property under the control of any health care benefit program

HIPPA Securuty Rule

•Requirements for maintaining the security of electronic health records -Transmission -Storage •Substantial fines if found to be in non-compliance •Breach -Unauthorized acquisition

HIPAA Security

•Run a complete risk assessment •Be prepared for a disaster •Train all employees in proper computer use •Buy products with security and compatibility in mind •Collaborate with all compliance-affected parties

transactions and code sets are and what they are used for

•Transactions -Transmission of information between two parties to carry out financial or administrative activities •Code Sets -Any set of codes used to encode data elements, such as tables of terms, medical concepts, medical diagnostic codes, or medical procedure codes

HTEC

●Makes massive changes to privacy and security laws ●Applies to covered entities and business associates ●Creates a nationwide electronic health record ●Increases penalties for privacy and security violations