CHAPTER © 2011 The McGraw-Hill Companies, Inc. All rights reserved. 3 Legal and Ethical Issues in Medical Practice, Including HIPAA.

CHAPTER

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

3Legal and Ethical Issues in Medical Practice, Including

HIPAA


3-2

Introduction

• Reasons to study medical law and ethics

– Function at the highest professional level

– Avoid legal problems


3-3

Medical Law and Ethics• Knowledge of medical law and ethics provides

insight into

– The rights, responsibilities, and concerns of health-care consumers

– The legal and ethical issues facing society, patients, and health-care professionals as the world changes

– The impact of rising costs on the laws and ethics of health-care delivery


3-4

Medical Law and Ethics (cont.)

Ethics is a standard of behavior and a concept of right or wrong.

Moral values serve as the basis for ethical conduct.

Family, culture, and society help form an individual’s moral values.

A law is a rule of conductor action prescribed or formally recognized as binding or enforced by a controlling authority.


3-5

Medical Law and Ethics (cont.)

• Criminal law– Crime against the

state

– Criminal acts are • Felonies or • Misdemeanors

– Examples include:• Murder• Arson• Sexual assault• Burglary

• Civil law– Crimes against the

person– Includes a general

category of laws known as torts

– Torts are either:• Intentional (willful) or• Unintentional

(accidental)


3-6

False imprisonment

Assault

Defamation of character

Fraud

Invasion of privacy

Open threat of bodily harm

Interference with a person’sright to be left alone

Damaging a person’s reputation by making false and malicious public statements

An action that causes bodily harm to another, including touching without permission

Intentional, unlawful restraint or confinement of a person

Intentional Torts

Depriving or attempting to deprive a person of his or her rights

Battery


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Acts that are committed with no intent to cause harm but done with a disregard for the consequences

The term negligence is used to describe such actions when health-care practitioners fail to exercise ordinary care, resulting in patient injury

Malpractice is the negligent delivery of professional services

Unintentional Torts


3-8

Contracts

A contract is a voluntary agreement between two parties in which specific promises are made for a consideration.

Agreement Consideration

Contractual Capacity Legal Subject Matter

Elements of a Contract


3-9

Types of Contracts

• Expressed contracts– Clearly stated in written or spoken

words– An example is a payment contract

• Implied contracts– Actions or conduct of the parties,

rather than words, create the contract– An example is a patient rolling up his

or her sleeve to receive an injection


3-10

Apply Your Knowledge

What is the difference between law and ethics?

ANSWER: A law is a rule of conduct or action and is enacted by governments to maintain order and public safety.

Ethics is a standard of behavior based on moral values that are influenced by family, culture, and society.


3-11

Physician/Patient Contract

• Reasonable limitations

• Both parties have rights and responsibilities related to the contract


3-12

Physician Rights• Set up a practice within

the boundaries of his or her license to practice medicine

• Select where to set up an office and establish office hours

• Specialize

• Decide which services to provide and how those services will be provided


3-13

Physician Responsibilities

• Physician responsibilities– Use due care, skill, judgment, and diligence

– Keep knowledge up-to-date

– Perform to the best of his or her ability

– Furnish complete information and instructions to the patient


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Patient Rights/Responsibilities

• Patient responsibilities– Follow physician’s

instructions and cooperate with care

– Provide relevant information to the physician

– Follow the physician’s orders for treatment

– Pay the fees charged for services provided


3-15

Patient-Physician Contract (cont.)

• Consent– Implied – actions

imply permission

– Informed • Patient receives all

information necessary to make a decision regarding treatment

• Doctrine of informed consent – legal basis for informed consent

• Liability– Legal responsibility for

actions• Understand scope of

practice• Understand standard of

care and duty of care

– Medical assistants are all held to the “reasonable person standard”


3-16

Special Circumstances – Closing of a Practice

• Comply with HIPAA

• Notify patients in writing

• Give option of choosing another physician or make referral

• Secure or dispose of records appropriately

• Remain up-to-date on HIPAA laws


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ANSWER: Patient responsibilities are:

– Follow physician’s instructions and cooperate with plan of care

– Provide relevant information to the physician

– Follow the physician’s orders for treatment

– Pay the fees charged for services provided

Patients have rights and responsibilities relating to health care. The rights are determined by the Patient Care Partnership. What are the patient’s responsibilities?


3-18

Preventing Lawsuits

• Lawsuits – Add to cost of health care– Take a psychological toll on all

involved

• Prevention – Use of reasonable care to

prevent professional liability


3-19

Malpractice

• Malpractice claims are lawsuits by a patient against a physician for errors in diagnosis or treatment– Examples: post-operative complications, Res ipsa

loquitur (the thing speaks for itself)

• Negligence cases are those in which a person believes a medical professional’s actions, or lack thereof, caused harm to the patient– Examples: abandonment, delayed treatment


3-20

Malpractice (cont.)


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utyPatients must show that a physician-patient relationship existed.

erelictPatients must show that the physician failed to comply with the standards of the profession.

irect CausePatients must show that any damages were a direct cause of a physician’s breach of duty.

amages Patients must prove that they suffered injury.

Patients must be able to prove all 4 Ds in order to move forward with a malpractice suit.

The 4 Ds of Negligence


3-22

Malpractice (cont.)

• Settling malpractice suits– Arbitration

• People with special knowledge in the field listen to the case and decide the dispute

– Court• Written court orders

(subpoena) are delivered to involved parties.

• Subpoena duces tecum is a court order to produce documents such as patient records

• Civil law– Concerned with an

individual’s private rights

– Torts• Negligence • Breach of contract

– Failure to adhere to a contract’s terms


3-23

Malpractice (cont.)

• Law of Agency– Employees are considered to be agents of the

physician while performing professional tasks

– Physicians are responsible or liable for the negligence of employees

– Respondeat superior is a Latin term meaning “Let the master answer”

Employees are also legally responsible for their own actions, and they can be sued directly.


3-24

Courtroom Conduct

• Attend court proceedings as required and do not be late for scheduled hearings

• Bring required documents to court and present them when requested to

• Refresh your memory before testifying• Speak slowly, clearly, and professionally• Answer all questions in a straightforward manner• Answer only the question asked• Appear well groomed, and dress in clean, conservative

clothing


3-25

Malpractice (cont.)

• Reasons patients sue– Unrealistic

expectations

– Poor rapport and poor communication

– Greed and our litigious

society

– Poor quality of care

• Professional Liability Coverage – protects the physician and staff against financial losses from lawsuits filed against them


3-26

Malpractice (cont.)

• Statute of limitations– Laws that set the deadline or maximum period

of time within which a lawsuit or claim may be filed

– Deadlines vary • Type of case• State vs. federal court


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The 4 Cs of Malpractice Prevention

aring Sincere caring decreases the likelihood that a patient will sue if outcomes are unsatisfactory or adverse events occur.

ommunication Develop trust and respect with patients by communicating professionally and confirming that you have been understood.

ompetence Maintain competence and update knowledge and skills frequently.

harting Documentation is proof of competence. Chart every conversation and interaction you have with a patient.


3-28

Terminating Care of a Patient

• Reasons for terminating care of a patient– Refusal to follow physician

instructions

– Patient family member complaints

– Personality conflicts

– Failure to pay for services rendered

– Repeated failure to keep appointments

• When withdrawing from care, a physician must– Provide written notification

• Reasons for withdrawing• Recommend that the

patient find another physician

– Send by certified mail with return receipt requested

– Document in the patient record reasons for terminating care and actions taken to inform the patient


3-29

Standard of Care

• Apply legal concepts to practice by– Maintaining confidentiality

– Practicing within the scope of training and capabilities

– Preparing and maintaining medical records

– Documenting accurately

– Using proper guidelines when releasing information


3-30

Standard of Care (cont.)

• Apply legal concepts to practice by– Following legal guidelines and maintaining

awareness of health-care legislation and regulations

– Maintaining and disposing of regulated substances appropriately

– Following risk-management and safety procedures

– Recognizing professional credentialing criteria


3-31

Administrative Duties and the Law

• Duties related to legal requirements

Insurance billing

Patient consent forms

Documentation in the medical record

Making appointments Appointment books

are a legal document

State reporting requirements Births Abuse Certain diseases Injuries from violent acts Deaths

Phone calls Maintain privacy


3-32

Documentation

• Clear and complete– Referrals

– Missed appointments

– Dismissals

– Patient contact

– Medical record correction

• Medical records– Property of facility or

physician– Doctrine of

Professional Discretion

– Retention and storage• Based on state law


3-33

Controlled Substances and the Law

Medical assistants must follow the correct procedure for keeping and disposing of controlled substances.

Be familiar with correct dosages, potential complications, and refill rules.


3-34

Legal Documents and the Patient

States the types of treatment the patient does and does not want in an event of terminal illness, unconsciousness, or comatose state.

Patients with living wills are asked to name someone that will make decisions on their behalf (durable power of attorney) if they are unable to do so.

UniformDonorCard

A legal document that states a person’s wish to donate one or more organs or

whole body.

LivingWill

(Advance Directive)


3-35

Confidentiality Issues

• Legal obligation to maintain confidentiality of patient information

• Discuss with patient privately

• Share patient information only when appropriate

• Do not discuss the case with anyone outside the medical office


3-36

Federal Legislation Affecting Health Care

• Health Care Quality Improvement Act (1986)

– Purpose: Improve the quality of medical care nationwide

– National Practitioner Data Bank

• Federal False Claims Act– Qui tam

• To bring action for the king and one’s self

– Control three types of illegal conduct

• False billing claims• Kickbacks• Self-referrals


3-37

OSHA Regulations• The Occupational Safety and Health Administration

(OSHA) is a division of the U.S. Department of Labor

• Regulations describe precautions that must be taken to protect workers from exposure to health hazards on the job, including exposure to infectious diseases such as– Human immunodeficiency virus (HIV)– AIDS– Hepatitis B virus (HBV)


3-38

Exposure Plan• Personal protective equipment or gear

• Immunizations against hepatitis B virus (HBV)

• Information on what to do in case of exposure

• Information on decontamination of waste products

• Information on how to dispose of sharp equipment (needles, etc.)

• Information on post-exposure evaluation and follow-up


3-39

Exposure Plan (cont.)

• Information on how to keep an inventory of hazardous materials

• Labeling for bio-hazardous wastes

• Training, annual updates regarding hazardous materials and infectious substances

• Recordkeeping and documentation to protect the legal rights and safety of employees


3-40

HIPAA• Health Insurance Portability and Accountability

Act (1996)– Improve efficiency and effectiveness of health-care

delivery

– Protect and enhance the rights of patients• Access to health-care information• Control inappropriate use or disclosure

– Improve the quality of health care by restoring trust in the health-care system


3-41

Title I: Health Care Portability• Increases workers’ ability to get health-care coverage

when starting a new job

• Reduces workers’ probability of losing existing health-care coverage

• Helps workers maintain continuous health-care coverage when changing jobs

• Helps workers purchase health insurance on their own if they lose coverage under an employer’s group plan and have no other health-care coverage available


3-42

Title II: Prevention of Health Care Fraud and Abuse, Administrative Simplification and Medical Liability Reform

• HIPAA privacy rules– Give patients more control over their health

information

– Set boundaries on the use and release of health-care records

– Establish appropriate safeguards to protect the privacy of health information

– Hold violators accountable if they violate patients’ privacy rights

– Strike a balance when public responsibility supports disclosure of some forms of data


3-43

HIPAA (cont.)

• Privacy Rule – protected health information (PHI)

Use – movement within an organization

Disclosure – transmitted between or among organizations

Managing and storing Sharing Notice of Privacy

Practices (NPP)

Protection – security measures HIPAA Security Rule

Computer networks The Internet Disks, other storage

media, and extranets

Chart Reception area and

clinical stations Fax, copier, and

printer


3-44

HIPAA (cont.)


3-45

Confidentiality Issues and MandatoryDisclosure

Principles for preventing improper release of information1. When in doubt, do not release information

2. It is the patient’s right to keep patient information confidential or disclose it

3. All patients should be treated with the same degree of confidentiality

4. Be aware of all applicable laws and of the regulations


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Confidentiality Issues and MandatoryDisclosure (cont.)

Principles for preventing improper release of information5. When necessary to break confidentiality and when there is

a conflict between ethics and confidentiality:Discuss it with the patient If the law does not dictate what to do in the situation, the attending

physician should make the judgment based on the urgency of the situation and any danger that might be posed to the patient or others

6. Get written approval from the patient before releasing information


3-47

Code of Ethics

• Principles of right and wrong– Laws are often based on

ethical considerations

• Medical professionals are expected to act ethically


3-48

Code of Ethics (cont.)


3-49

Legal Contract Elements

• An agreement between two or more competent people to do something legal

• Names and addresses of the people involved

• Consideration (whatever is given in exchange, such as money, work, or property)

• Starting and ending dates, as well as date(s) the contract was signed

• Signature of the employer and employee


3-50


Mr. Jones would like to try a new treatment for his Parkinsonism, but his physician refuses to discuss a new treatment with Mr. Jones because he morally disagrees with this type of treatment. This is an example of what type of issue, and what should the physician do?

ANSWER: This is an example of a bioethical issue. The physician should refer the patient to another physician who specializes in this treatment.

Good Answer!


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Labor and Employment Laws• Title VII of the Civil Rights

Act of 1964– Law prevents employers

from discriminating in hiring or firing on the basis of race, color, religion, sex, or national origin

• Age Discrimination in Employment Act (ADEA) of 1967– Prohibits discrimination in

hiring or firing based on age for persons aged 40 or older

• Sexual harassment– The victim has the

responsibility to let the harasser know that the conduct is offensive

– The victim should also report any instance of sexual harassment to a supervisor or the personnel department


3-52

Labor and Employment Laws (cont.)

• 1976 Pregnancy Discrimination Act– Makes it illegal to fire an employee based on

pregnancy, childbirth, or related medical conditions

• Civil Rights Act of 1991– Provides monetary damages in cases of intentional

employment discrimination


3-53


• Titles I and V of the Americans with Disabilities Act of 1990– Ban discrimination against disabled persons

in the workplace

– Mandate equal access for the disabled to certain public facilities

– Require all commercial firms to make existing facilities and grounds more accessible to the disabled


3-54


• 1938 Fair Labor Standards Act– Prohibits child labor and firing employees for

exercising their rights under the act’s wage and hour standards

– Provides for overtime pay and a minimum wage

• Equal Pay Act of 1963– Requires equal pay for men and women doing equal

work

• Family Leave Act of 1991– Allows employees to take unpaid leave time for

maternity, for adoption, or for caring for ill family members


3-55


What are your responsibilities if you feel you have been a victim of sexual harassment?

ANSWER: The victim has the responsibility to let the harasser know that the conduct is offensive and should also report any instance of sexual harassment to a supervisor or the personnel department.


3-56

Legal Medical Practice Models

• Be aware of laws governing the practice model of your place of employment

• Five types of practice models– Sole proprietorship

• Single physician

– Partnership• Two or more physicians practice together• Contract specifies rights, obligations, and responsibilities


3-57

Legal Medical Practice Models (cont.)

– Group practice• Three or more licensed

physicians

• Physicians share the collective income, expenses, facilities, equipment, records, and personnel for the practice

Professional corporation Corporation is a body

formed and authorized by law to act as a single entity

Physicians who form corporations are shareholders and employees of the organization

Incorporators and owners have limited liability in case lawsuits are filed


3-58

Legal Medical Practice Models (cont.)

– Clinics• Broad in their range of specialties and sub-

specialties• Locations

– In hospital– Freestanding – urgent care – In-store


3-59


What is the difference between a group practice and a professional corporation?

ANSWER: A group practice is three or more physicians who share the practice income, expenses, and facilities. In a professional corporation the physicians are shareholders and employees of the corporation.


3-60

Let no one come to you without leaving better and happier.

—Mother Theresa

End of Chapter 3

CHAPTER © 2011 The McGraw-Hill Companies, Inc. All rights reserved. 3 Legal and Ethical Issues in Medical Practice, Including HIPAA.

Documents

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