Legal -Exam 3

Respondeat superior

(let the master respond) -Legal doctrine holding employers liable, in certain cases, for the wrongful actions of their agents (employees) -Employer/employee relationship must exist (may also apply to some independent contractors) -Wrongful act must have occurred within the scope of the employment Also referred to as vicarious liability (one party held liable for acts of the other)

Healthcare consent Medical malpractice

(negligence claim) - provider failed to provide sufficient information about procedure, alternatives, risks, etc. (need to prove, duty, breach, injury and causation) -primary duty to obtain informed consent rests with the provider who will perform procedure (physician) -healthcare organizations generally do not have an independent duty to obtain informed consent. However they are sometimes charged with malpractice for failure to have effective mechanisms to protect their patients (e.g., mechanisms to ensure that the patient's informed consent was obtained prior to surgery)

Healthcare consent Claim of battery

- (nonconsensual touching)

Clauses Confidentiality Agreements

- Do not share information about services, clients, etc.

Guardianship

- In an advanced directive such as a durable POA for healthcare, the patient retains control over who will handle their affairs (can revise the document if he/she wants to do so). -Guardianship is determined by the courts. If a patient is found to be legally incompetent, the court appoints someone to make decisions about the patient's care and property if no authorized or capable agent can be identified. Guardianship can be limited for specific activities such as healthcare

Negligence

- a tort; an unintentional commission or omission of an act that a reasonably prudent person would or would not do under the same circumstances Examples: accidentally administering the wrong medication, failing to follow up on an abnormal test result

What are some example of NEGLIGENCE

- accidentally administering the wrong medication, - failing to follow up on an abnormal test result

Defamation of Character

- communication to someone about another person that tends to hold that person's reputation up to scorn or ridicule -must be communicated to a third party

Durable POA

- continues (takes effect) to be effective when the principal becomes incompetent. To convey this, document usually contains language such as, "This POA shall not be affected by my subsequent disability or incapacity" or The POA shall become effective upon my disability or incapacity.

Healthcare consent What is GENERAL/BLANKET consent & give example

- covers a range of services. When signing a hospital admission form, the patient gives permission to receive routine nursing care as ordered by the attending physician. -Most health care institutions have policies that state which health interventions require a signed consent form (eg, surgery, anesthesia, and other invasive procedures)

Clauses Restraint of Trade

- distributors/sellers of contracts cannot work outside of a prescribed region; eg. can't locate a franchise within a 5-mile radius of other franchise

Healthcare consent Informed consent

- legal doctrine that provides that a patient has a right to know the potential risks, benefits and alternatives to a procedure

Standard of Care Legal Definition:

- level at which the average, prudent provider in a given community would practice; how other similarly qualified individual would have managed the patient under same/similar

Malpractice

- negligence of a professional person

Healthcare consent What is IMPLIED consent & give example

- presumed by patient's participation or lack of refusal (mother takes holds the baby for the injection)

Genetics What is GINA?

- prohibits group health plans, individual insurers, and Medicare supplemental policies from adjusting premiums or contribution amounts for a group on the basis of genetic information. -prohibits group health plans from requesting or requiring individuals or family members from undergoing a genetic test. -prohibits health insurance market from establishing eligibility rules based on genetic information - prohibits discrimination by an employer, employment agency, labor organization, or joint labor-management committee against an employee, individual, or member because of genetic information

Clauses Non-Compete Clauses

- states you cannot work for a competitor for a certain period of time and/or within a certain geographic area -Have been challenged in court; court would determine if duration and geographic area were reasonable

Assault

- the deliberate threat, coupled with the apparent present ability, to do physical harm. No actual contact is necessary; involves infringement on the mental security or tranquility of another

Battery

- the intentional touching of another person in a socially impermissible manner, without that person's consent; involves a violation of another physical integrity Typical routine touching (e.g., on a crowded subway - person voluntarily enters the situation. Thus a reasonably prudent person would expect being bumped into or touched by others. This is NOT battery. Similarly, in healthcare, patients can expect that routine processes of care (dressing changes) would require touching.

False Imprisonment

- the unlawful restraint of an individual's personal liberty or the unlawful restraint or confinement of an individual

Defenses to a defamation action

- truth and privilege (responsibility to do so) Example: Healthcare providers are legally protected when reporting of STD to health department -Patient may use defamation as a theory of liability for improper disclosure of information; Hard to do because medical record entries are usually true. Also, the presence of a valid patient authorization would serve as a defense.

Healthcare consent What is EXPRESSED consent & give example

- using a statement of direct words

Invasion of Privacy

- violation of right of person to be free from unwarranted publicity and exposure to public view, as well as the right to live one's life without having one's name, picture or private affair made public against one's will

Intentional Torts in Healthcare

-(differ from negligence in two ways: ) -intent must be present and the wrongdoer must realize to a substantial certainty that harm would result and intentional tort involves a willful act.

Corporations For a hospital, who typically has the authority to enter into a contract on behalf of the hospital/corporation

-Anyone higher up -DIRECTOR -CEO

Mandatory Reporting in PA Identify 3 broad categories of mandatory reporting -don't list 4 infectious diseases

-Child abuse: Any recent act or failure to act by a perpetrator which causes nonaccidental serious physical injury to a child under 18. -Reporting of Suspicious Deaths to the Coroner in Pennsylvania: Healthcare provider must report if the deceased's death was sudden, violent, suspicious or not the result of natural causes, report the death to the Medical Examiner/Coroner. -Reportable Quality and Safety Concerns: deaths due to injuries, suicide, or unusual circumstances.

DNR (Do Not Resuscitate)

-Orders in Records -are written in the record to indicate that attempts to resuscitate the patient (e.g., perform CPR) should NOT be performed based on the patient's or patient's representatives wishes that resuscitation efforts not be performed. Patient's or patient's representative's preferences should be documented as early as possible and should be revisited and revised as appropriate.

Genetics Why is the release of genetic info of concern to the consumer/patient?

-Potential for misuse of data causes some people decide against genetic testing or to participate in research studies on gene mutations -Discrimination could not only be directed at the individual tested but also to relatives who have not been genetically tested. -By health insurers (examples):Employee had child born with Fragile X Syndrome and coverage was dropped. -child custody cases: attempting to require testing to identify if a parent has predisposition to debilitating disease -third-party liability cases: minimizing monetary awards based on life expectancy if plaintiff has genetic predisposition

Other Clauses Sometimes Seen Other Points of Interest

-Signed copy of contract for each involved party. -Most hospitals/organizations have contract specialist (purchasing department, risk management or legal department)

Other Clauses Sometimes Seen Interruption Clause

-deal with extraordinary and unexpected events (floods, earthquakes, electrical failures, urban riots) that may occur during the life of a contract which may prevent a party from meeting its obligations -Buyer of services would work to get a narrowly defined clause related to issues that are "reasonably beyond the control of the parties" -For example, would you accept a power failure as an acceptable reason for a vendor not providing operation of a key computer system over a substantial period of time? (Expectation would be that vendor is taking necessary precautions to prevent such an interruption) -Sample (very generic) interruption contract clause: "Neither party to this Purchase Order will be held liable where a circumstance beyond its reasonable control occurs and results in that party being unable to carry out its obligations under this Purchase Order."

Power of Attorney (POA)

-is a legal instrument that is used to delegate legal authority to another. -The person who signs (executes) a Power of Attorney is called the Principal. The power of Attorney gives legal authority to another person (called an Agent) to make property, financial and other legal decisions for the Principal.

Healthcare consent

-the voluntary agreement by a person who possesses sufficient mental capacity to make an intelligent choice to allow a medical procedure and/or proposed by another to be performed on himself or herself (Pozgar 2007) -GETTING a form signed is NOT the equivalent of obtaining an informed consent. Documentation of the informed consent discussion is needed. Consent forms do provide some evidence that an informed consent process was conducted. Interestingly, many courts find a contemporaneous progress note or history and physical (H&P) exam report that includes mention of the informed consent discussion to be much more convincing evidence that a conversation took place than the patient's signature on a standardized form.

What is the purpose of a contract?

-to provide legal recourse should one or more of the parties not perform its obligations as set forth under the contrac

Healthcare consent What legal resource does patient have if informed consent not obtained?

1) Medical malpractice 2) Claim of battery

Elements of a Contract:

1. Offer - offer by one party to do (or not do) something if the other party agrees to do (or not do) something -Preliminary negotiations are NOT offers 2. Consideration - Each party must give up something of value in exchange for something of value 3. Acceptance - mutual assent; both parties agree and understand

Healthcare consent- Informed consent What info needs to be provided

1. The informed consent should be obtained by the person who will perform the procedure 2. Patient must be capable of giving an informed consent 3. The patient must be free from coercion or undue influence when giving consent 4. The consent should be granted for a specific procedure or treatment. 5. The patient must be sufficiently informed of: -the nature and purpose of the proposed procedure -the risks and benefits of the proposed treatment any reasonable alternatives to this procedure any risks of refusing the proposed procedure or treatment 6. The patient is given the chance to ask questions and get answers.

Corporations Advantages of a forming a corporation over forming a solo proprietorship or partnership

1. if partner dies, corporation still EXIST 2. Can share or transfer interest to others 3.tax is on corporate income NOT each owner

Anti-Trust Laws

?

Anti-Trust Laws what do these laws prevent/foster ?

?

Corporation Difference between a profit and non-for-profit

?

Corporations

?

Corporations Importance of governing body minutes in relationship to the duties listed in line above

?

Healthcare consent What is the role of obtaining signature on form?

?

Healthcare consent Who is responsible to obtain Healthcare consent?

?

What are examples of peer review documents?

?

What are peer review documents?

?

What are typically discoverable in peer review documents?

?

Court Ordered Treatment/ Involuntary Commitments

A patient may be ordered by the government (court) to undergo test or treatment: -involuntary commitment of individuals with mental illness who are danger of causing harm to themselves or others -Court-ordered substance abuse treatment for someone convicted of a DUI

Contracts

A written or oral agreement that involves legally binding obligations between two or more parties

Who has a fiduciary duty to a corporation?

Board member or Trustee

Compliance

Compliance

Elements of a Contract: Consideration

Each party must give up something of value in exchange for something of value

Anti-Kickback Laws

Federal law prohibits knowingly and willfully soliciting or receiving any remuneration (that is, anything of value) or knowingly and willfully offering remuneration, whether direct or indirect, overt or covert, in cash or in kind, in return for referring a patient for the furnishing of any item or service or purchasing, leasing, ordering, or arranging for the purchase, lease, or ordering of any item of service paid for in whole or in part by a federal program. Example, paying a physician for referrals would be prohibited.

Genetics G I N A -Stands for?

Genetic Information Nondiscrimination Act

Examples of Invasion of Privacy

Healthcare Examples: -Divulging a patient's information to improper sources can be viewed as an invasion of privacy -Monitoring a patient's telephone conversations -Allowing nonmedical personnel to witness a medical procedure without patient's consent -Photographing a patient without patient's consent MAY be viewed as an invasion of privacy (HIPAA Privacy Rule considers a full face photograph to be PHI)

What are Incident Reports?

In a health care facility, such as a hospital, nursing home, or assisted living, an incident report or accident report is a form that is filled out in order to record details of an unusual event that occurs at the facility, such as an injury to a patient. The purpose of the incident report is to document the exact details of the occurrence while they are fresh in the minds of those who witnessed the event. This information may be useful in the future when dealing with liability issues stemming from the incident. Generally, according to health care guidelines, the report must be filled out as soon as possible following the incident (but after the situation has been stabilized). This way, the details written in the report are as accurate as possible. Most incident reports that are written involve accidents with patients, such as patient falls. But most facilities will also document an incident in which a staff member or visitor is injured. In the event that an incident involves a patient, the patient will often be monitored for a period of time following the incident (for it may happen again), which may include taking vital signs regularly.

How is guardianship determined?

It is determined by the courts. If a patient is found to be legally incompetent, the court appoints someone to make decisions about the patient's care and property if no authorized or capable agent can be identified. Guardianship can be limited for specific activities such as healthcare

What are the forms of DEFAMATION OF CHARACTER

Libel - written form of defamation (signs, letters, photos) Slander - verbal form of defamation

Are incident reports considered to be part of the health record, legal health record, or designated record set?

No

Mandatory Reporting in PA Is patient authorization required to release the information to the related authority?

No

Corporate negligence

Organization fails to meet responsibilities it has to general public and its patients This doctrine holds a hospital liable if it fails to uphold the proper standard of care owed the patient (ensuring safety and well being)This duty is directly between the corporation and the patient; Injured party does NOT have to establish negligence of a third party Benchmark Case which held a health care facility liable for corporate negligence: Darling vs. Charleston Community Memorial Hospital, 1965 -Prior to Darling hospitals had complete tort immunity because they were charitable organizations

example of POA

POA used if principal is unavailable to sign a legal document Can see POAs for Healthcare and POAs for finances A power of attorney (POA) becomes ineffective when the principal becomes incompetent.

Who (what party) pursues the legal action

Plaintiff (patient) must prove negligence by the defendant (physician/hospital). All four elements of negligence must be present for plaintiff to recover damages Elements of Negligence 1. Duty to care 2. Breach of duty - defendant failed to comply with accepted standards of care 3. Injury 4. Causation

Remedies for breach

Remedies Available if there is a Breach of Contract -court orders performance of the contractual obligation -awarded damages ($$)

What is the duty of loyalty?

THe interest of corporation comes 1st

Tort law (not criminal law)

a civil wrong, other than a breach of contract, committed against a person or property for which a court provides a remedy in the form of an action for damages

General concepts of ANTI-Kicback laws

a)not allowed to compensate someone for patient referrals b) providers can't refer to an entity within which he/she or a family member has ownership (self-referral)

***What is this????*** -Res ipsa loquitur

also that it serves as an exception to having to prove all elements in a negligence case; example

Corporations Duty of responsibility?

board members must act w due care. Attend meeting, understand decision and perform due diligence.

Fraud

deception made for personal gain Can include many illegal activities: imposter/forgery (Frank Abagnale - Catch Me If You Can) academia - falsifying research findings false advertising *****---->false billing <---**** quackery investment fraud

Elements of a Contract: Acceptance

mutual assent; both parties agree and understand

Elements of a Contract: Offer

offer by one party to do (or not do) something if the other party agrees to do (or not do) something -Preliminary negotiations are NOT offers

Who may enter into a CONTRACT?

§ Entered into by parties with the legal authority to do so -legally competent adult (if a minor signed a contract - voidable as though it never existed; prisoner's rights restricted as to ability to enter into contracts) -government -corporations/companies -corporations have articles of incorporation (charter) which limit (personal) liability; an agent of the corporation (e.g., president/CEO) signed contract in that capacity