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

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Presentation on theme: "CHAPTER © 2011 The McGraw-Hill Companies, Inc. All rights reserved. 3 Legal and Ethical Issues in Medical Practice, Including HIPAA."— Presentation transcript:

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

3 © 2011 The McGraw-Hill Companies, Inc. All rights reserved. 3-2 Introduction Reasons to study medical law and ethics –Function at the highest professional level –Avoid legal problems

4 © 2011 The McGraw-Hill Companies, Inc. All rights reserved. 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

5 © 2011 The McGraw-Hill Companies, Inc. All rights reserved. 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 conduct or action prescribed or formally recognized as binding or enforced by a controlling authority.

6 © 2011 The McGraw-Hill Companies, Inc. All rights reserved. 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)

7 © 2011 The McGraw-Hill Companies, Inc. All rights reserved. 3-6 False imprisonment Assault Defamation of character Fraud Invasion of privacy Open threat of bodily harm Interference with a person’s right 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

8 © 2011 The McGraw-Hill Companies, Inc. All rights reserved. 3-7  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

9 © 2011 The McGraw-Hill Companies, Inc. All rights reserved. 3-8 Contracts A contract is a voluntary agreement between two parties in which specific promises are made for a consideration. AgreementConsideration Contractual CapacityLegal Subject Matter Elements of a Contract

10 © 2011 The McGraw-Hill Companies, Inc. All rights reserved. 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

11 © 2011 The McGraw-Hill Companies, Inc. All rights reserved 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.

12 © 2011 The McGraw-Hill Companies, Inc. All rights reserved Physician/Patient Contract Reasonable limitations Both parties have rights and responsibilities related to the contract

13 © 2011 The McGraw-Hill Companies, Inc. All rights reserved 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  Physicians do not have to Treat every patient Return patient to original state of health Make a correct diagnosis in every case Guarantee success of treatment or operation

14 © 2011 The McGraw-Hill Companies, Inc. All rights reserved 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

15 © 2011 The McGraw-Hill Companies, Inc. All rights reserved 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  Patients May choose their physician May terminate a physician’s services  The Patient Care Partnership A list of standards that patients can expect in health care Formerly the Patient’s Bill of Rights

16 © 2011 The McGraw-Hill Companies, Inc. All rights reserved 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”

17 © 2011 The McGraw-Hill Companies, Inc. All rights reserved 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

18 © 2011 The McGraw-Hill Companies, Inc. All rights reserved Apply Your Knowledge 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?

19 © 2011 The McGraw-Hill Companies, Inc. All rights reserved 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

20 © 2011 The McGraw-Hill Companies, Inc. All rights reserved 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

21 © 2011 The McGraw-Hill Companies, Inc. All rights reserved Malpractice (cont.)  Legal terms used to classify negligence Malfeasance - unlawful act or misconduct Misfeasance - lawful act done incorrectly Nonfeasance - failure to perform an act that is one’s required duty or that is required by law

22 © 2011 The McGraw-Hill Companies, Inc. All rights reserved uty Patients must show that a physician-patient relationship existed. erelict Patients must show that the physician failed to comply with the standards of the profession. irect Cause Patients 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

23 © 2011 The McGraw-Hill Companies, Inc. All rights reserved 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

24 © 2011 The McGraw-Hill Companies, Inc. All rights reserved 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.

25 © 2011 The McGraw-Hill Companies, Inc. All rights reserved 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

26 © 2011 The McGraw-Hill Companies, Inc. All rights reserved 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

27 © 2011 The McGraw-Hill Companies, Inc. All rights reserved 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

28 © 2011 The McGraw-Hill Companies, Inc. All rights reserved 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.

29 © 2011 The McGraw-Hill Companies, Inc. All rights reserved 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

30 © 2011 The McGraw-Hill Companies, Inc. All rights reserved 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

31 © 2011 The McGraw-Hill Companies, Inc. All rights reserved 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

32 © 2011 The McGraw-Hill Companies, Inc. All rights reserved 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

33 © 2011 The McGraw-Hill Companies, Inc. All rights reserved 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

34 © 2011 The McGraw-Hill Companies, Inc. All rights reserved 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.

35 © 2011 The McGraw-Hill Companies, Inc. All rights reserved 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. Uniform Donor Card A legal document that states a person’s wish to donate one or more organs or whole body. Living Will (Advance Directive)

36 © 2011 The McGraw-Hill Companies, Inc. All rights reserved 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

37 © 2011 The McGraw-Hill Companies, Inc. All rights reserved 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

38 © 2011 The McGraw-Hill Companies, Inc. All rights reserved 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)

39 © 2011 The McGraw-Hill Companies, Inc. All rights reserved 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

40 © 2011 The McGraw-Hill Companies, Inc. All rights reserved 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

41 © 2011 The McGraw-Hill Companies, Inc. All rights reserved 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

42 © 2011 The McGraw-Hill Companies, Inc. All rights reserved 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

43 © 2011 The McGraw-Hill Companies, Inc. All rights reserved 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

44 © 2011 The McGraw-Hill Companies, Inc. All rights reserved 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

45 © 2011 The McGraw-Hill Companies, Inc. All rights reserved HIPAA (cont.)  Violations and penalties Civil Criminal – for the knowing, wrongful misuse of health information  Administrative simplification Standardizing patient information Standardized codes and formats – electronic transaction records

46 © 2011 The McGraw-Hill Companies, Inc. All rights reserved Confidentiality Issues and Mandatory Disclosure Principles for preventing improper release of information 1. 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

47 © 2011 The McGraw-Hill Companies, Inc. All rights reserved Confidentiality Issues and Mandatory Disclosure (cont.) Principles for preventing improper release of information 5. 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

48 © 2011 The McGraw-Hill Companies, Inc. All rights reserved Code of Ethics Principles of right and wrong –Laws are often based on ethical considerations Medical professionals are expected to act ethically

49 © 2011 The McGraw-Hill Companies, Inc. All rights reserved Code of Ethics (cont.)  Bioethics Pertains to issues that arise due to medical advances Principles of medical ethics have developed over time dating back to Hippocrates  AMA: defines ethical behavior for physicians Patient Care Partnership: Understanding Expectations, Rights, and Responsibilities  Replaced the Patient’s Bill of Rights

50 © 2011 The McGraw-Hill Companies, Inc. All rights reserved 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

51 © 2011 The McGraw-Hill Companies, Inc. All rights reserved Apply Your Knowledge 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!

52 © 2011 The McGraw-Hill Companies, Inc. All rights reserved 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

53 © 2011 The McGraw-Hill Companies, Inc. All rights reserved 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

54 © 2011 The McGraw-Hill Companies, Inc. All rights reserved Labor and Employment Laws (cont.) 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

55 © 2011 The McGraw-Hill Companies, Inc. All rights reserved Labor and Employment Laws (cont.) 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

56 © 2011 The McGraw-Hill Companies, Inc. All rights reserved Apply Your Knowledge 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.

57 © 2011 The McGraw-Hill Companies, Inc. All rights reserved 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

58 © 2011 The McGraw-Hill Companies, Inc. All rights reserved 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

59 © 2011 The McGraw-Hill Companies, Inc. All rights reserved Legal Medical Practice Models (cont.) –Clinics Broad in their range of specialties and sub- specialties Locations –In hospital –Freestanding – urgent care –In-store

60 © 2011 The McGraw-Hill Companies, Inc. All rights reserved Apply Your Knowledge 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.

61 © 2011 The McGraw-Hill Companies, Inc. All rights reserved Let no one come to you without leaving better and happier. — Mother Theresa End of Chapter 3


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