Legal and Ethical Exam 2

shared medical decision making

A process in which the provider gives the patient relevant information about all treatment alternatives and the patient shares relevant personal information. Both parties then come to a mutual decision regarding the appropriate course of therapy or treatment plan

motion to dismiss

A pleading in which a defendant asserts that the plaintiff's claim fails to state a cause of action (that is, has no basis in law) or that there are other grounds on which a suit should be dismissed.

Affirmative Action

A policy designed to redress past discrimination against women and minority groups through measures to improve their economic and educational opportunities

pleadings

written documents setting forth the contentions of the parties and are of fact give basis for the legal claim to opposing parties and prevent unfair surprise to either side.

interrogatories

written questions for which written answers are prepared and then signed under oath

Respondeat Superior

"Let the master answer" an employer is vicariously liable for the behavior of an employee working within his or her scope of employment

negligent hiring and retention

-Companies can be liable for hiring or retaining violent employees. -companies have been found liable for failing to check an applicants driving record, to contact personal references, and to search criminal records. -Courts have also found companies negligent for retaining dangerous workers. If an employee threatens a coworker, the organization is not free to ignore the menacing conduct. If the employee acts on his threats, the company may be liable.

retention of records

-Laws regarding retention vary from state to state -10 years or length of time on statute of limitations -Minors: 3 years after age of majority -Medicare/Medicaid patient: a minimum of 6 years -Deceased patient: 2 years

what are the elements of informed consent?

-brief explaination of intervention -name and qualifications of the persons performing the procedure -an explanation of any serious harm that might occur -an explanation of alternative therapies to the intervention -right to refuse further treatment even after it is started

what must be proved by a patient to filed a malpractice suit about informed consent?

1. A duty on the part of the health care provider to know of a risk or alternative treatment 2. A duty on the part of the health care provider to disclose the risk or alternative treatment 3. A breach of the duty to disclose 4. If the health care occurs in a state where the reasonable patient standard is used, a reasonable person in the plaintiff's position would not have consented to the treatment if he or she had known of the outstanding risk 5. The undisclosed risk caused the harm, or the harm would not have occurred if an alternative treatment plan was selected 6. The plaintiff suffered injuries for which damages can be assessed

what is often listed in a detailed consent form,?

1. A signature of the competent patient or legal representative 2. Name and full description of the proposed procedure 3. Name of person or persons to perform procedure 4. Description of risks and alternatives of the proposed procedure, including no treatment 5. Description of probable consequences of the proposed procedure 6. Signature of one or two witnesses according to state law

durable power of attorney for health care

1. Allows patients to appoint a surrogate or proxy to make health care decisions for them in the event that they are incompetent to do so 2. It is a common-law concept that allows one person to speak for another 3. Best form of substituted judgment available for an otherwise incompetent patient 4. The surrogate has full authority to act as the principal would have acted 5. Agent has authority to enforce patient's treatment plans by filing lawsuits or legal action, as well as the right to forgo treatment, change treatment, or consent to additional treatment

therapeutic privilege

1. Allows primary health care providers to withhold information based on sound medical judgment that the patient is too emotionally or mentally unable to fully understand and that revealing the information would potentially harm the individual 2. Detrimental nature of the information must be more than fear that the information would lead to the patient's refusal 3. Based on actual danger or patient incompetence, not merely on the principle of beneficence 4. Not favored by the courts, as it is a form of intentional nondisclosure 5. Must fully disclose withheld information after the risks of patient harm have abated

what are the requirements for DWDA

1. Individual must be a competent and terminally ill adult 2. Patient must make an oral or written request for the prescription, signed, dated, and witnessed by two individuals who attest to patient's competency and that no coercion has taken place 3. Must be followed by second request at the end of 15 days 4. Attending physician must determine if patient is making an informed and voluntary request 5. If physician believes that patient may suffer from psychiatric or psychological disorder or depression that could cause impaired judgment, patient will be referred to counseling and no medication to end life shall be prescribed until patient is determined to be sound

what treatment or therapies could a minor consent to without having to inform parents?

1. The diagnosis and treatment of infectious, contagious, or communicable diseases 2. The diagnosis and treatment of drug dependency, drug addiction, or any condition directly related to drug usage 3. Obtaining birth control services and devices (laws vary by state) 4. Treatment during a pregnancy as long as the care concerns the pregnancy (varies by state) 5. Medical care for their children (varies by state) 6. Minor mother may place her child for adoption without her own parents' permission or knowledge (34 states and the District of Columbia have these laws) 7. Authority to consent to outpatient mental health services (20 states and the District of Columbia allow such treatment)

when must nurses cooperate with law enforcement?

1. The suspect must be under formal arrest 2. There must be a likelihood that blood drawn will produce evidence for criminal prosecution 3. A delay in drawing blood would lead to destruction of the evidence. 4. The test is reasonable and not medically contraindicated 5. The test is performed in a reasonable manner

legal consultant

1. Works for one side, name is not revealed to the opposing side 2. Comments not disclosed during trial

what are the four exceptions to informed consent?

1. emergency situations 2. therapeutic privilege 3. patient waiver 4. prior patient knowledge

what are the limitations on the right of a person to refuse consent?

1. preservation of life 2. protection of minor dependents 3. protection of public helath

Federal Tort Claims Act

1948. Removed the power of the federal government to claim immunity from a lawsuit for damages due to negligent or intentional injury by a federal employee in the scope of his/her work for the government.

Family and Medical Leave Act

1993; Requires employers with 50 or more workers to grant up to 12 weeks of unpaid leave a year to allow workers to take time off to help care for a new baby or an ill family member without fear of losing their jobs.

mediation

A method of settling disputes outside of court by using the services of a neutral third party, called a mediator. The mediator acts as a communicating agent between the parties and suggests ways in which the parties can resolve their dispute.

national labor relations act

A 1935 law, also known as the Wagner Act, that guarantees workers the right of collective bargaining sets down rules to protect unions and organizers, and created the National Labor Relations Board to regulate labor-managment relations.

assumption of the risk

A defense against negligence that can be used when the plaintiff was aware of a danger and voluntarily assumed the risk of injury from that danger.

certificate of insurance

A legal document that indicates that an insurance policy has been issued, and that states both the amounts and types of insurance provided.

what basic elements must be included in meeting the standards of informed consent for research studies?

A statement that study involves research, an explanation of that research, expected duration of participation, descriptions of procedures to follow, and identification of procedures that are experimental 2. Description of any reasonably foreseeable risks or discomforts to the subject 3. Description of any benefits to the subjects or others 4. Disclosure of appropriate alternative procedures or courses of treatment, if any, that may be advantageous 5. Statement describing the extent, if any, to which confidentiality of records identifying the subject will be maintained 6. For minimal research, an explanation as to any compensations and explanation as to whether any medical treatments are available if injury occurs and if so, what they consist of 7. An explanation of whom to contact for answers to pertinent questions about the research and research subjects' rights and whom to contact in the event of a research- related injury to the subject 8. Statement that participation was voluntary and refusal to participate involves no penalties or loss of benefits. Subject may discontinue participation at any time without penalty or loss of benefit.

physician orders for life sustaining treatment (POLST)

created to assure that patient's wishes concerning resuscitation, life-sustaining treatment, and hydration and nutrition would be honored by responding EMS and acute care facilities

medical or physical directive

Allows for a directive that lists a variety of treatments and lets patients decide what they would want, depending on their condition at the time Legal worth comparable to the living will

deductables

Amounts of money that the insured must pay if there is a loss, prior to the insured paying.

injunction

An order which legally prevents something

Age Discrimination in Employment Act

Act that prohibits discrimination in employment for persons age 40 and over except where age is a bona fide occupational qualification.

false claims act

Allows employees to sue employers on behalf of the federal government Employee retains share of recovery

what are the types of advanced directiveS?

nature death acts living wills durable powers of attorney for health care third-generation advanced directives do not resuscitate directives

model state act to authorize and regulate PAS

Developed to prevent potential managed care abuses with physician-assisted suicide conditions -The patient must be competent -The patient must be fully informed -The choice must be voluntary -The choice must be enduring, stated to physician on at least two occasions that are two weeks apart

Living wills

Directives from competent individuals to medical personnel and family members regarding the treatment they wish to receive when they can no longer make the decision for themselves. legal document that is vague and broad but has NO LEGAL ENFORCEMENT

equal employment act of 1972

Gave the eeoc more authority to formulate policies procedures rules and regulations designed to ensure compliance with the law

right of refusal

right to refuse medical treatment as long as informed consent of the consequences and understanding of the prognosis without treatment. Only overriden if the patient is a harm to himself or to others.

immunity statutes

serve to dismiss certain causes of action

protected health information (PHI)

Any information about health status, provision of health care, or payment for health care that can be linked to an individual. This is interpreted rather broadly and includes any part of a patient's medical record or payment history.

defenses

Arguments in support of or used for justification which can be based on statutory law, common law or doctrine of precedent

statues of limitations

sets a specific length of time that individuals may sue for damages from negligence - some states require than an injured miror must file suit at least 3 yeras after the minor reaches an age of 18 - usually ahve 1-5 years to file suit

effective documentation

Consistent with professional and agency standards Complete Accurate Concise Factual Organized and timely Legally prudent Confidential

exculpatory contracts

signed to limit the amount of damages one recieves in a suit or to prevent future lawsuits based on the individuals helath care giver's actions

what forms are available for informed consent?

specific and blank

informed refusal

Demands that a patient be fully informed of risks or complications that may occur if they do not consent to a recommended therapy or diagnostic screening test

Contributory and comparative Negligence

In a contributory negligence state, a plaintiff who is even slightly responsible for his own injury recovers nothing; in a comparative negligence state, the jury may apportion liability between plaintiff and defendant.

implied consent

Indicated by conduct, not words or writing like holding arm out for a blood pressure legally presumed in emergency situations when a primary caregiver of a patient who is a minor gives consent

vicarious liability

Legal doctrine under which a party can be held liable for the wrongful actions of another party.

equal pay act of 1963

Legislation that requires employers to pay men and women equal pay for equal work

prior patient knowledge

Means the risks and benefits were explained to the patient the first time the patient consented to the procedure Liability does not exist for nondisclosure of risks that are public or common knowledge or that the patient had previously experienced

who has responsibility for obtaining informed consent?

PCP that is an employee or agent of the hospital, the hospital if they knew that there was lack of infromed consent

what is the stipulation about waivering informed consent?

Patient may initiate a waiver of the right to full disclosure if they do not want to know about potential risks

corporate liability

The institution has the responsibility and accountability for maintaining an environment that ensures safety & quality to serve and ensure competent health care providers are being provided to patients.

cross-examination

The interrogation of a witness by the opposing party

levels of evidence

standard of proof that the society feels necessary to prove factual conclusions.

Workers Compensation

state programs that provide benefits to workers who suffer work-related injuries or illnesses, or to their survivors

alternative liability

Plaintiff is injured by the negligent conduct of only one of two or more defendants but it is unknown which defendant actually caused the injury.

genetic information nondiscrimination act of 2008

Prohibits discrimination because of genetic information

supplementary payments

Provide extra coverage over and above the insured's limits of liability, Used for defense costs. can be used for lost earnings or reasonable expenses

Good Samaritan Law

Provides limited protection to someone who voluntarily chooses to provide first aid

do-not-resusciate directive

Recognize that patients and surrogate decision makers need the ability to state their preferences for or against resuscitative measures 2. Physician will then follow hospital policy in attaching such orders to the patient record 3. If it is not known whether a valid do-not-resuscitate order has been written, the legal standard of care is to immediately begin resuscitation

Rehabilitation Act of 1973

Requires affirmative action in the employment of individuals with disabilities

hospice center

Some terminally ill patients prevent the need for natural death acts by entering hospice centers, where a patient is cared for until death occurs Patients receive care without the fear that they will be resuscitated or placed on life-support systems when death occurs

disclosure statues

State statues create mandatory reporting requirements to protect the public at large

coverage extensions

Supplemental Insurance coverages that apply only in certain circumstances.

electronic medical record

Systematic collection of a patient's health care and treatment in a digital format in the physician's office or medical facility

opening statements

The attorneys' statements to the jury at the beginning of the trial of what the jury will be shown by the evidence

trial

The court process to determine whether someone committed a criminal act

limits of liability

The maximum amount of money the insurance company will pay for a particular loss, or for loss during a period of time.

when can natural death acts be revoked?

The natural death act may be revoked by physical destruction or defacement, by a written revocation, or by an oral statement

right of discovery

The right of either a prosecutor or a defendant to discover certain evidence in possession of the other party. 1. witnesses to be questioned by opposing side prior to trial 2. finding of relevant written materials 3. possible additional examinations of the plaintiff

proof beyond reasonable doubt

The standard of proof needed to convict in a criminal case. The evidence offered in court does not have to amount to absolute certainty, but it should leave no reasonable doubt that the defendant committed the alleged crime.

clear and convincing evidence

The standard of proof required in some civil cases and, in federal courts, the standard of proof necessary for a defendant to make a successful claim of medical malpractice. Intermediary evidence

best interest standard

The standard used to determine the best interest of an individual when the individual cannot make such a decision alone often given authority to family to hold the best interest

policy period

The time frame, beginning with the inception date, during which insurance coverage applies.

genetic testing

The use of methods to determine if someone has a genetic disorder, will develop one, or is a carrier

defense of others

The use of reasonable force to protect self or others from harm

whistleblower law

states that no employer can discharege, threaten, or discriminate against any employee because the employee in good faith reported or caused to be reported something that was believed to be a violation of a law or rule.

substituted judgement

subjective determination of how, if a person were capable of making his or her opinions and wishes known, he or she would have chosen the right to refuse

family and medical leave act of 2008

take up to 26 weeks off to take care of member of armfed forces

defendant

the answering party to the plaintiffs lawsuit who is being charged

verdict

the decision a jury makes in a trial; the decision said by the jury

standard of proof

the degree or extent to which a case must be proved in court

health literacy

the degree to which individiuals have the capacity to obtain, porcess and understand basic health information

policy holder

the insured party

abuse

the physical, mental, emotional, or sexual mistreatment of one person by another

contract negotiation

the process of give and take the parties go through to reach an agreement

covered injuries

types of injuries or provisions they will honor

How long are natural death acts effective?

until revoked but should be updated every year to have current wishes.

defense codes

all reasonable and neccessary costs incurred in the investigation, defence and negotitiation of any covered cuit or claim.

omnia praesumuntur contra spoliatorem

all things are presumed against despoiler spolaige of the evidence, can indicate guilt

physician assisted suicide

allow physicans to prescribe medications to give patients the tools to act but no involved in the act itself. 6 states only legally allow.

ostensible authority

allows a principal to be liable for acts and omissions by independent contractors workings within the principal's place of business or at the direction of the principal place of business or at the direction of the principle when a third party misinterprets the relationship as empolyer-employee

indemification

allows the employer to recover the individual personally responsible any damages paid under the doctrine of respondeat superior

necessity

allows the nurse to interfere with the patient's property rights to avoid threatened harm. -there must be a threatening factor present.

waiver

waiver right to information and disclosure

informed consent

an agreement or permission accompanied by full notice about the care, treatment, or service that is the subject of the consent 1 The doctrine of informed consent developed from negligence law as the courts began to realize that, although consent may have been given, insufficient information was imparted to form the foundation of an informed decision and otherwise could result in battery

alternative dispute resolution

any means of settling disputes outside of the courtroom setting including arbitration, mediation, early neutral evaluation, conciliation

legal guardian or representative

appointed surrograte or proxy to speak on the behalf of an individual

truth

avoid defense against defamatory statements

minor

children under the age of 18

what is the physicians legal responsibility in informed consent?

communicate with the patient about the benefits, risks, and alternatives of the proposed procedure and to obtain the patient's consent

reservation of rights

company reserves right to deny coverage once the facts are known

exculpatory aggreements

completely release hospital from liability for employee's negligence and which are signed by patients prior to therapy

when does the natural death act become activated?

when in a terminal condition but will be allowed medication and treatments to reduce suffering.

employer-sponsored coverage

coverage through an employer-sponsored plan, often called group health insurance which may be the narroweszt plan.. called insureds - policy is written specifically for the insiutition because coverage is for the business and major concerns are for the business not the employee

occurence based policies

covers the nurse for injuries arising out of incidents that occurred during the time the policy was in effect

policy tail

coverts the orginal policy so that the policy includes a clause that the policyholder wishes to add to the current language of the policy, quite expensive

counterclaim

a claim made to rebut a previous claim.

pure comparative negligence

a defense accepted in some states whereby the defendant is not liable for the percentage of harm that he or she can prove is due to the plaintiff's own negligence

Equal Employment Opportunity Commission (EEOC)

a federal agency designed to regulate and enforce the provisions of Title VII

insurance policy

a formal contract between the insurance carrier and an individual or corporation

court order

a formal statement from a court that orders someone to do or stop doing something

default judgement

a judgement entered by a court against a defendant who has failed to appear in court to answer or defend against the plaintiff's claim

wrongful discharge

a legal doctrine that requires employers to have a job-related reason to terminate employees

indemity

a payment for damage or loss

collective liability

a practice whereby everyone in a community was jointly responsible for the obligations and actions of all members

voir dire

a preliminary examination of a witness or a juror by a judge or counsel.

borrowed servant doctrine

a special application of the doctrine of respondent superior and applies while undere general employement of another, is subjet to the right to direct and control the details of the indivdiuals partciular action

substituted judgement

a subjective test that attempts to determine how persons, were they capable of making their opinions and wishes known, would have chosen to exercise their right to refuse therapy

mature minor

a teenager between the ages of 14 and 17 who is able to understand the nature and consequences of the proposed therapy, and who independently makes his or her own decisions on a daily basis

lay witness

a witness who can truthfully and accurately testify on a fact in question without having specialized training or knowledge

what are exceptions to legal adults right to give or refuse informed consent?

a. A court-appointed guardian b. A person with a valid, written power of attorney

Who can NOT sign a natural death act with the patient?

a. Related to the patient by blood or marriage b. Entitled to any portion of the estate of the patient by will or intestacy c. Directly financially responsible for the patient's medical care d. An attending physician, employee, or employee facility in which the declaration is a patient e. The person who, at the request of the patient, signed the declaration because the patient was unable to sign

when does a minor not need parental consent?

a. The emergency doctrine applies b. The child is an emancipated or mature minor c. There is a court order to proceed with the therapy d. The law recognizes the minor as having the ability to consent to the therapy

when does assessment of an individual have to be performed in order to determine acceptability of obtaining consent?

a. Underlying intellectual disability b. Obvious mental disorder c. Disease that affects their mental functioning

in loco parentis

ability of a person or the state to stand in the place of parents; allowed in some states

priveleage

defense against defamation, which is a discolsure that might ordinarily be defamatory under different circumstances but such disclosure may be allowed to further protect the public or private interests -diagnosis of certain diseases -abuse of others

standard of disclosure

disclosing information about proposed condition or treatment to the patient based on various models.

medical records

documents that contain a chronological log of a patient's care (paper or electronic)

dual servant doctrine

employer-hospital and physician "captain of the ship" under vicarious liability Ex: nurse working in OR under guidance of surgeon. surgeon directs her to perform an activity or intervention which results in harm to the patient.

employment at will

employment principle that if there is no specific employment contract saying otherwise, the employer or employee may end an employment relationship at any time, regardless of cause

Occupational Safety and Health Administration (OSHA)

enacted to assure healthful and safe working condtions in the workplace

prelititgation panels

ensure that there is actual controversy or fact questions before the case is presented at court. Formed by medical and legal experts reviewing evidence concerning the injury

alterations of records

ensure truthful, accurate record

what are the forms of informed consent?

expressed implied written oral complete partial

What is the patient self-determination act?

federal legislation that requires all clients admitted to a health care facility to be asked if they have advance directives and what will or will not happen to their bodies

complaint

filed in a court with competent jurisdiction

pretrial confereance

final phase of pretrial discovery in an informal session during which the judge and attonrney sagree on the issues to be settled in procedural matters.

arbitration

formal process of setting a dispute and is often like a mini trial no court report and no formal record but the final decision is legally binding

motions

formal requests by one of the parties asking the court to grant its request may be filed to include things like a speedy trial or moving jurisfications

expressed consesnt

given by direct words either written or oral

qualified privilege

has the legal duty to disclose information in good faith

de-identified information

health documents from which specified personal data has been removed, often include 18 of the PHI information no way to distinguish a patient based on the information provided. Only gender, age and three digit zip code

What is the benefit of a shared decision making model?

improves patient autonomy and comprehension reduce unwanted medical procedures and services, therefore costs increase communication and trust between patients and providers

medical illiteracy

inability to understand medical information about disease process, medication labels, consent forms, treatment options and discharge. risk for worsening of one's health more than other factors

declariations

includes policyholder's name, address, covered professional occupation, and time covered

patient self-determination

involves the right of individuals to decide what will or will not happen to their bodies

product liability

libaility of a manufactur, processor, or nonmanufacturing seller for injury to a person or person's property by a given product, resulting from a manufacturing defect, design defect or failure to warn

detailed consent form

list of procedures, consequences, risk and alternatives, many states will mandate this form through statutory medical disclosure

natural death act

living will with statutaory enforcement that vary state to state that allow for withholding or withdrawl of LST from patients in a terminal state.

personal liability

makes indivdiuals responsible for his or her own actions

patient-based standard of informed consent

materiality standards hold the practitioner responsible for disclosing information on the risks, benefits, and alternatives to a treatment that other "reasonable patients" would need in order to make an informed decision.

settlement

means of allowing the parties to forgo the trial process and settle for a aggreed-upon dollar figure.

emergency consent

when the patient is unable to make their wishes known and is presumed in emergency situations. without intervention or delaying intervention, it could result in loss of life or limb. provider must not have any resason to believe patient would refuse treatment not required to obtain consent in those that are mentally incompetent

expert witness

nurse who explains to the judge and jury what happened based on the patient's record and who offers an opinion as to whether the nursing care met acceptable standards of practice

what is the nurses role in obtaining informed consent?

nurses must continually communicate with a patient, explaining procedures and obtaining the patient's permission Know the state laws on allowing the patient to refuse life-sustaining treatment Nurses have legal duty if patients wish to revoke their prior consent, if it becomes obvious that a patient's already-signed informed consent form does not meet the legal standards of informed consent, or if oral comments of the patient do not concur with their paperwork

deposition

obtaining a witness testimony by a sworn statement made outside the court that is admissible as evidence by the court taken of a witness who is questioned by the attorney representing the opposing side of the controversy. goal is to assist opposing counsel in preparing for a court case by discoverying potential testimony from witnesses before the trial

licensure protection

often not covered by insurance policies.

independent contractor

one who arranges with another to perform a service, but who is not under the control or right to control of the second person. apply to private duty nureses

civil rights act of 1964

outlawed discrimination based on race, color, religion, sex, or national origin

coverage conditions

outline the insured nurse's duties to the insurance carrier in the event a claim or lawsuit is filed, provisions for cancellation of the policy, prohibition of assignment of the policy, and subrogation of rights

coverage agreements

outline the types of claims that will be covered by a given policy

incident variance

overall risk manage or quality assurance effort for a health care insitution

plaintiff

party that believes he or she may have a valid cause of action against another individual, initiates the lawsuit

contribuatory negligence rule

patients who had any part int the AD consequences were barred from any compensation, even if the contribution was as low as one percent

consent

permission for something to happen or agreement to do something, technically is an easy yes or no based on common law right of a person to be free from harm or offensive touching

what are the types of standards for informed consent?

physican based patient based shared medical decision making model

modifitied comparative rule

plainitiff whose negligence is found to exceed that of the defendants is barred from recovery, often by a 50% in some states or by 51%

blank consent form

prior to admission routine and customary care needed only for insurance coverage and assignment of benefits

preonderance of the evidence

probable truth or accurarcy of the evidence and is the least strict requirement for being proven guilty.

professional liability insurance

protects nurses against lawsuits that arise from real or alleged errors or omissions which includes payment for legal advice and representation, court costs and possible reimbursement

claims-made policies

provide coverage only if the claim for an injury that has occurred is filed with the courts and is reported to the insurance company during he active policy period or during an uninterrupted extension of that policy period.

specific consent form

provide information like name and description of procedure section understanding risks, alternatives and benefits

exclusions

provision in an insurance policy eliminating coverage for certain risks or limiting coverage

self-defense

reasonable and proportionate force to defend oneself from harm or injury

physician -based standard of informed consent

require the primary health care provider to disclose the risk, benefits, and alternatives to a treatment in the same manner that other "reasonable prudent practitioners" would employ

charting by exception

requires documentation of only significant or abnormal findings, and previously entered standardized or expected results are not re-entered into the chart.