HealthCareLaw Review Questions
What are the purposes of nominal damages, actual damages, and punitive damages?
Nominal damages are awarded for the vindication of a right in which minimal injury can be proved. Actual damages are the damages awarded to make the plaintiff whole and restore them to their position in existence before the injury. Punitive damages are damages awarded above and beyond actual damages, often in instances where there is proof of outrageous, malicious, or intentional conduct.
How does the principle of res ipsa loquitur fit into the context of negligence?
Res ipsa loquitur is not widely used and applies only when a plaintiff cannot prove negligence with the direct evidence available. The patient has to attempt to convince the jury that the injury would not have happened except as a consequence of negligence.
What is the role of an expert witness in a negligence claim?
The purpose of expert witness testimony in medical malpractice is to describe standards of care relevant to a given case, identify any breaches in those standards, and if so noted, render an opinion as to whether those breaches are the most likely cause of injury
Why should those who manage health information and data establish and maintain policies and procedures that govern the production of metadata in electronic form?
Those who manage health information and data, establish policies and procedures because metadata can identify those who have reviewed, manipulated, or otherwise accessed a patient's record. Understanding metadata allows the manager to ensure that the data is properly produced as part of the audit trail.
What are the three main elements of a complaint?
Three elements are necessary in every complaint: (1) the jurisdiction of the court (2) the plaintiff's claim in a short and plain statement (3) the demand for relief to which the plaintiff feels he or she is entitled.
How does vicarious liability differ from corporate negligence?
Victorious liability makes a health care organization responsible for the negligence acts of its employees committed within the course and scope of their employment. Corporate negligence recognizes that a health care organization owes duty directly to a patient with regard to care and treatment.
Compare the steps typically taken in the ethical decision-making process shown in Table 6.2 with the additional steps listed in the last section of the chapter.
1) Clearly define the issue 2)Determine the facts of the situation 3)Determine who the stakeholders are -values that are at stake - obligation and interests of each stakeholder 4)Determine what options are available after evaluating each option 5) Decide what should be done 6) Justify the decision 7) Implemented decision 8) Evaluate the outcomes of the decision 9) Examine how to prevent the issue recurring
What eight questions are typically presented to the custodian of records in order to introduce a health record into evidence?
1) State your full name and business address 2)Are you the custodian of records for [name of health-care provider]'? 3) In answering these questions, have you made a full and complete search of [name of health-care provider]'s records for the patient [name of patient]? 4)Have you presented today a true, complete, and accurate copy of all [name of health-care provider]'s records for the patient [name of patient]? 5) If not, please state as accurately as possible all such documents that are not present today and the reason(s) therefor. 6) Are all entries contained in the records presented today made by [name of health care provider] or her employees in the ordinary course of business? 7) If not, please identify which document or entry presented today is not made in the ordinary course of [name of health care provider]'s business. 8) What procedures are taken to ensure the accuracy of the records you have presented today?
What are the elements of a negligence claim?
1) a duty of care is owed to the patient 2) a breach of this duty of care 3)a casual connection between the breach of duty and the patient's injury 4) damages
Name the three direct ethical roles that supervisors play in organizations.
1) serving as a role model 3) encouraging ethical behavior 3) monitoring employee conduct
What are the different methods one can use to establish the standard of care?
1)The plaintiff may introduce into evidence the general standards contained in state laws and regulations governing the pertinent of profession 2) General standards of care can be found in written material from various sources. 3) A health care facility's internal policies and procedures, and medical staff by laws. 4)A plaintiff uses expert testimony to establish a breach of the standard of care.
What do the terms metadata, spoliation, and litigation hold mean?
1. Metadata refers to unseen information in common text files, which can indicate when a document was created, viewed, or revised and can contain edits, notes, or other private data. 2. Spoliation refers to the wrongful destruction or material alteration of evidence or the failure to preserve property or data for another's use as evidence in pending or reasonably foreseeable litigation. 3. Litigation hold refers to the actions of a party who possesses data to make efforts to prevent routine destruction and preserve electronically stored information (ESI) that may be discoverable, even before the time when a lawsuit is filed.
How are court orders different from subpoenas?
A court differs from a subpoena in that the court order authorizes disclosures that would otherwise be prohibited by statute and regulations; a subpoena is subject to any and all legal defenses created by statute, regulations, and common law.
What is a certificate of destruction?
A document that shows what data and records were destroyed, who destroyed those data and records, and the method used for that destruction.
How can an electronic health record be corrected?
A new document showing the correction is created and added to the electronic record, with a computer code attribute used to reference the original document to the addendum. An electronic signature is required to authenticate the addendum.
What is a litigation plan?
A litigation response plan is a tool consisting of policies and procedures that address how to respond to legal process requests.
Define the terms living will and durable power of attorney for health care.
A living will is a document, exercised while patient is competent, that provides directions as to medical care in the event the patient becomes incapacitated or unable to make person decisions. A durable power of attorney for health care is a document that allows a competent patient to name someone else to make health care decisions in the event the patient becomes incapacitated or unable to make personal decisions.
Compare and contrast the defenses commonly raised in lawsuits involving health care providers.
A statute of limitations is a law that sets forth a fixed time period in which lawsuits must be brought. Charitable immunity is a charitable institution could be shielded from liability for any torts committed on it property or by its employee. Governmental immunity precludes plaintiff from asserting a meritorious lawsuit against a governmental entity unless the governmental consents to the lawsuit.
What does the term advance directives mean? Provide examples.
Advance directives are written instructions recognized under state law,such as living wills or durable powers of attorney for health care, that relate to kind of health care patient wishes to have or not have if he or she becomes incapacitated.
Compare and contrast a subpoena, a subpoena ad testificandum, and a subpoena duces tecum.
All three terms refer to commands from a court or other official. -A subpoena refers to a command to appear and/or present certain documents and other things. -A subpoena ad testificandum refers to a command for the appearance of a witness to give testimony. -A subpoena duces tecum refers to a command for the production of books, documents, and other things.
What generally defines an emergency situation in the context of informed consent?
An emergency situation is present if the patient is unable to give consent, another person authorized to give consent on the patient's behalf is unavailable, and/or a delay in treatment would likely result in death or serious bodily harm to the patient.
How does assault differ from battery?
Assault occurs when an individual is placed in reasonable anticipation of being touched in such a way that is insulting, provoking, or will cause individual physical harm. A battery consists of physical contact involving injury or offense.
How did alternative dispute resolution become a popular alternative to litigation?
Because of the dissatisfaction felt by litigants with the existing legal system and its costs to litigants in terms of time, stress, and fees.
What ethical concepts underlie the ethical precautions used in not disclosing HIV/AIDS status on a routine basis?
Beneficence and nonmaleficence underlie the ethical precautions used in not disclosing HIV/AIDS status on routine basis.
What are the similarities and differences between opening and closing statements at trial?
Both opening and closing statements summarize the evidence presented in the case and highlight the weaknesses of the otherside's case. They differ in that the opening statement does not ordinarily refer to a witness's credibility, something closing statements often include.
How do the principles of liability influence the health information professional's role in protecting health information?
By understanding these principles, the health information professional is better able to prevent improper disclosure of health information.
What is the categorical imperative?
Categorical imperative is a command derived from a principle that does not allow exceptions.
Compare and contrast the clinical uses of a health record with the secondary purposes of a health record.
Clinical uses of health records refer to direct patient care, the chronological document of clinical care, methods of cross-discipline education, research activities, public health monitoring, and quality improvement activities. As for the secondary purpose refers to billing and reimbursements, disability verification, and legal documentation of care.
Why are codes of ethics important?
Code of ethics are important because they identify for the broader community what the professional association defines are the basic ethical and moral standards to which its members must adhere.
State what is meant by the phrase "code of ethics."
Code of ethics is a written list of a profession's values and standards of conduct.
How does comparative justice differ from distributive justice?
Comparative justice balances the competing interests of individuals and groups against one another with independent stand used for this comparison. Distributive justice uses an independent standard for fair distribution of burdens and benefits.
Compare and contrast confidentiality and privacy.
Confidentiality refers to the obligation of the health care provider to maintain patient information in a manner that will not permit dissemination beyond the health care provider. Privacy is the underpinning to legal protections for patient-specific health information.
How does comparative negligence differ from contributory negligence?
Contributory negligence means the conduct of the plaintiff that contributes a part to the injury the plaintiff received. Comparative negligence, negligence is measured in terms of percentages that can be attributed to the plaintiff that will then be reduced proportionally from the overall award of damages.
What are the differences between defamation, invasion of privacy, and medical abandonment?
Defamation consists of the wrongful injuring of another person's reputation. Invasion of privacy is the dissemination of information about another person's private, personal matters. Medical abandonment is the unilateral severing, by the physician, of the physician-patients relationship without giving the patient reasonable notice at a time when there is a necessity for continuing care.
Why should a health information manager need to understand the court system and legal procedures?
Demands are placed on health information professionals to comply with the legal process, particularly the use of health information in a lawsuit. Accordingly, the health information professional must understand the variations of court systems and legal procedures in order to comply.
Is it ever appropriate to curb a person's autonomy?
Depends, ethical dilemma arises from the extent to which autonomy is curbed. Autonomy is not an absolute but rather a freedom that is subject to some level of restriction.
Why is it difficult to preserve ESI?
ESI is difficult to preserve because ESI is dynamic and changeable. Routine computer operations critical to a party's activities, plus limitations on memory for electronic storage, may require parties to overwrite data.
How does the concept of emancipation of a minor affect substituted consent?
Emancipation of a minor is the legal ability of a minor to act as an adult when he or she has moved away from home and receives no suppose from his or her parents.
What are the concepts of ethics, morals, etiquette, and law based on?
Ethics is the formal study of moral choices that confirm to standards of conduct. Morals are the principles of the right conduct that individuals internalize. Etiquette is the social code of customs and rituals. Law is based on a body of rules with legal force.
What are exclusions?
Exclusions operate to prevent the admission of evidence in a court case. One exclusion is the apology of the health-care provider for any unanticipated outcome of the delivery of medical care.
What other factors play a role in the decision-making process?
Factors such as past experiences, a variety of cognitive biases, an escalation of commitment and sunk outcomes, individual differences, including age and socioeconomic status, and a belief in personal relevance can play a role in the decision-making process.
What is the failure to warn theory, and how may it be exercised in the context of a dangerous patient?
Failure to warn is a negligence theory that applies to a psychotherapist's failure to take steps to protect an innocent third party from a dangerous patient. The psychotherapist incurs a duty to use reasonable care to protect the third person from the danger of the patient.
Give examples of federal question jurisdiction and diversity jurisdiction.
Federal question jurisdiction deals with cases involving a U.S. constitutional principle, treaty, federal statute, or federal rule orregulation. Diversity jurisdiction involves parties who are citizens of different states whose controversy involves over $75,000.00.
Name the five sources that serve as legal requirement for health record content.
Five sources that serve as legal requirement for health record contents are: statutory, regulatory, accrediting, institutional, and professional guidelines.
How is a foundation established to admit a health record into evidence?
Foundation requirements of the business record exception must be established during testimony by a health information manager.
In what contexts does GINA provide protection of genetic information?
GINA provides protection of genetic information in the contexts of insurance and employment, prohibiting the use of genetic information as a condition of eligibility for health insurance and prohibiting employment discrimination based on genetic information.
What is a garnishment typically used for?
Garnishment is typically used for debts such as unpaid taxes, monetary fines, child support payments, and student loans.
Explain the concept of an amendment to the record under the HIPAA Privacy Rule.
HIPAA Privacy rule dictates that an individual possesses a right to have a covered entity amend patient-specific health information or record about the individual contained in a designated record set for as long as the patient-specific health information is maintained in that record.
Why should health care providers be aware of bioethical issues?
Health care providers should be aware of biothetical issues because without the knowledge they would not be able to protect both patients and providers adequality.
How does a health record serve as a legal document?
Health records are used to prove what did or did not happen in a particular case and to establish whether the applicable standard of care was met.
What ethical concepts are used to address the scarcity of organs to be used in human transplants?
How to address the scarcity of tissue/organs and how to allocate those that are available are difficult ethical questions that involve the concepts of the best best-interest standard and justice.
Are all rights recognized universally across the globe?
Human rights are the same for every man, woman and child across the world, no matter what their circumstances.
How does a claim for nonperformance of a contract differ from a claim of improper performance of a contract?
In nonperformance of a contract is where a physician fails to perform a particular act promised. In a lawsuit for improper performance, the physician begins to take whatever action he and the patient agreed on but performs it improperly.
Is it legally proper for a physician in a group practice to sign medical entries made by another physician in the same practice? Why or why not?
Medical record entries must be legible, complete, dated, timed and authenticated in written or electronic form by the person responsible for providing or evaluating the service provided, consistent with hospital policies and procedures.
What are medical staff privileges, and how are they determined?
Medical staff privileges are the scope and limit of a physician's practice in a medical institution as defined by the institution's governing board. To determine the privileges, the board reviews the physician's background, experience, and licensure against criteria established by the medical departments or specialties of the hospital.
Compare and contrast negligence and medical malpractice.
Negligence refers to someone failing to do something that a reasonably prudent person would do in a similar situation, or, alternatively, doing something that a reasonably prudent person would not do in a similar situation. Medical malpractice is the failure of a physician to follow a standard of care, which results in harm to the patient.
Are ethical challenges ever clear-cut?
No clear-cut "rights" answer exist and an individual is required to make a choice between two or more equally favorable alternatives or between a neutral alternative and a tempting but unfavorable alternative.
Are the entries made in the health record ordinarily subject to cross-examination? Why or why not?
No, ordinarily the entries are not subject to cross-examination because they are considered hearsay evidence. As hearsay evidence, the person who made the entries, a witness, is not present in the courtroom for purposes of cross-examination.
Should the health information professional assume that each subpoena presented requires the release of the information requested? Why or why not?
No, such an assumption is not appropriate. If this assumption is made and the subpoena is actually invalid, the health information professional may have complied in such a way as to make an improper release of records. This improper release can be the subject of litigation on its own.
Does each state have trial courts, intermediate courts of appeal, and supreme courts?
No. All states have trial and supreme courts. Some, but not all, states have intermediate courts of appeal.
How can one distinguish between legal and ethical issues?
One can distinguish between legal and ethical issues by looks at the consequences. Breaking the law results in penalties enforced by the laws. Breaking ethical codes results in the disapproval of at least on segment of society, like professionals in an organization.
What are open record statutes, and which federal law do they most closely follow?
Open record statues are statutory provisions that address confidentiality requirement using presumption of disclosure of information upon request, absent statutory exemption. Which falls under state level law.
What role do patient rights play in ethical decision making?
Patients rights are essentially the recognition that the patient is entitled to determine for himself the extent to which they will receive or forgo care and treatment.
What are privacy statutes, and which federal law do they most closely follow?
Privacy statues are laws the generally correspond with the principles found in federal privacy act: presumption of confidentiality that may be rebutted with evidence of patient authorization to disclose information.
How does a psychiatric advance directive differ from a traditional advance directive?
Psychiatric advance directive is a legal document expressing a person's preference for future mental health treatment, which may include appointment of another person to interpret those preferences during a crisis.
How can health information professionals experience ethical challenges when dealing with third parties?
Some third-party seek inappropriate access to genetic, adoption, or behavioral health information. Others, such as commercial vendors, may seek to be paid for work not performed.
What ethical concerns are expressed about perinatal ethics?
Some ethical concerns expressed about perinatal ethics are whether or how often should prenatal testing be employed. Some see this as an issue of autonomy and personal liberty, since many of these tests are performed in the early stages of pregnancy when the right to an abortion is protected by law.
What is meant by the term standard of care?
Standard of care is the level of care a reasonably prudent professional would have rendered in the same or similar circumstances.
What legal requirements apply to a record retention policy?
Statutes on the state level and regulations on both the federal and state levels apply.
What legal processes may be used to remove the health record from the health care provider's safekeeping?
Subpoenas and court orders.
What is meant by the phrase "substituted consent"?
Substituted consent is the legal doctrine that allows an authorized person to consent to or forgo treatment on the patient's behalf when the patient is not legally competent to provide consent.
What perspectives are used to measure the professional disclosure standard and the reasonable person standard?
Sufficient disclosure includes information concerning the nature of the proposed procedure or treatment, the risks involved therein, any available alternatives, and the benefits that may be expected.
When is the best-interest standard most frequently used?
The best-interest standard determines what is in the best interest of a person when that person cannot decide for themselves. Most frequently used on patients that cannot give consent.
What is the double-effect principle?
The double-effect principle refers to the principle that recognizes that ethical choices may result in untoward outcomes.
Name the ethical concepts at issue concerning the access of minors to contraception.
The ethical concept at issue concerning the access of minor to contraception fall under the best-interest standard and paternalism.
Can methods used to finance health care influence ethics?
The financing of health care influences ethics.
How should the health information professional handle an invalid subpoena duces tecum?
The health information professional may consult legal counsel to determine if a motion to quash is in order.
Does the judge or the jury decide what evidence can be admitted?
The judge decides what evidence can be admitted during a trial.
Name the methods of discovery discussed in this chapter.
The methods of discovery are deposition, interrogatories, documents of production, physical or mental examination, and requests of admissions.
What are the most frequent ethical challenges in health information management?
The most frequent ethical challenges center on the coding-reimbursement connection; quality view; information security; data resource management; and the protection of sensitive information, including genetic, drug, and alcohol abuse, mental health, and sexual abuse information.
When does the physician-patient privilege apply, and what is its use?
The physician-patient privilege applies to the introduction of evidence at trial and is used to prevent the forced disclosure or testimony about information obtained by health care provider during the course of treatment.
Why is the physician-patient privilege useful?
The physician-patient privileges is used to prevent the forced disclosure of, or testimony about, information obtained by health care provider during the course of treatment.
When do the physician-patient and hospital-patient relationships begin?
The physician-patient relationship begins when the patient requests treatment and the physician agrees to render that treatment. Hospital-patient relationships begin when the patient is voluntarily admitted to the hospital.
In what ways can the scope of the informed consent doctrine be measured?
The scope of the informed consent doctrine can be measures in several ways: who may consent to treatments, how much information the health care provider must disclose to the patient, and what situations require informed consent.
What is meant by the term legal process?
The stages through which a lawsuit passes.
What are the steps in a civil lawsuit?
The steps of a civil lawsuit are complaint, discovery, pretrial, conference, trial, appeal, and judgment.
How can the use of social media in health care present risks of liability?
The use of social media in health care can present potential risks to patients and HCPs regarding the distribution of poor-quality information, damage to a professional image, breaches of patient privacy, violation of personal-professional boundaries, and licensing or legal issues.
What are the different types of organ transplants?
There's autografts, allograft/ homografts, and xenografts/ heterografts.
What are the legal uses of the health record?
They form the backbone of every professional liability action and are used to establish whether the standard of care was met. They are also used in civil actions, such as credentialing and disciplinary proceedings. They may be used in criminal actions to establish the cause of the victim's death, an insanity defense, or a party's physical condition.
How is trustworthiness established to admit a health record into evidence?
To establish trustworthiness, the health information manager must possess knowledge of internal policies and procedures governing access tot he medical record and quality control techniques, such as approved methods to make corrections to and use the abbreviation of the record.
What are the differences between utilitarianism and deontology?
Utilitarianism is where everyone should choices that promote the greatest balance of good over hard for everyone. Deontology is decisions making based on moral rules and unchanging principles.
How does a cost-benefit analysis work?
Utilitarianism theory uses a cost-benefit analysis to show the group of benefits.
What are the requirements of the Emergency Medical Treatment and Active Labor Act that hospitals must meet?
Under the Emergency Medical Treatment and Active Act, hospitals ad physicians who participate in the Medicare program must follow certain guidelines for the treatment and transfer for all patients, regardless of whether a particular patient who appears for care is eligible for Medicare.
How does the hospital-physician relationship differ from the physician-patient and hospital-patient relationships?
Unlike physician-patient and hospital-patient relationships, a hospital-physician relationship is not based on direct patient care. It is based on the contract between the hospital and the physician that allows the physician to bring patients to the hospital to receive health care.
Describe the difficulties faced by an HIV/AIDS patient whose infected status is disclosed without the patient's consent.
When improper or unauthorized disclosure of test result or the subject's identity occurs, the injured person may bring a civil suit for damages.
Will civil or criminal liability apply to a health care institution that destroys a record in other than the ordinary course? Why?
Yes, civil liability generally will apply if the health-care provider accidentally or incidentally discloses health information when destroying a record in the ordinary course. Ordinarily, criminal liability would not apply.
How is withholding treatment different from withdrawing treatment?
Withholding treatment refers to the decisions of the patient, her family, or her legal guardian to refrain from giving permission fro treatment or care. Withdrawing treatment refers to the decision of the patient, her family, or her legal guardian to discontinue activities or remove forms of patient care.
What are the different forms of privilege?
Work-product privilege, attorney-client privilege, and physician-patient privilege.
Does one need to look to both federal and state regulations to determine standards for health record content?
Yes because no one federal law addresses the legal requirements governing all patient records.
A health information professional has three options to respond to a subpoena. Name these three options.
i. Refer the subpoena to the health care provider's counsel for assistance; ii. Contact the requesting attorney and make a noncommittal response acknowledging the confidentiality restrictions under which the health care provider operates; and iii. Excise portions of the health record that the health information professional determines are protected and release the remainder.
What does the term euthanasia mean? Describe the two categories.
the term euthanasia refers to the act or practice of causing death painlessly, with the aim to end suffering.