Chapter 5 Ethical and Legal Implications of Practice

Learning Objectives Summarize the philosophical foundations of ethics. Explain what constitutes an ethical dilemma and how they arise in health care. Describe how professional codes of ethics apply to ethical decision making. Explain how traditional ethical principles are useful in resolving ethical dilemmas.

Learning Objectives (cont.) Describe the information that should be gathered before making an ethical decision. Explain how the systems of civil and criminal law differ. Describe what constitutes professional malpractice and negligence. Explain how a respiratory therapist can become liable for wrongful acts. List the elements that constitute a practice act.

Learning Objectives (cont.) Explain how licensing affects legal responsibility and liability. Describe how changes in health care delivery have shaped the ethical and legal aspects of practice. Summarize the basic elements of the Health Insurance Portability and Accountability Act of 1996 (HIPAA). Describe the role of advance directives and living wills in health care.

Philosophical Foundations of Ethics Ethics has its origins in philosophy - the love of wisdom & the pursuit of knowledge Ethics is primarily concerned with the question, “How should we act?” Ethics represents commitment to “respect humanity in persons.”

Code of Ethics Code of ethics : Essential part of any profession claiming to be self-regulating AARC has Statement of Ethics & Professional Conduct This code seeks to establish parameters of behavior for members of profession. (See Box 5-1) Moral obligations impose ethical duties on therapists Tools of cross examination cited in legal proceedings

Ethical Theories & Principles Autonomy Principle acknowledges patients’ personal liberty & their right to decide their own course of treatment Basis for “informed consent” Under this principle, any use of deceit to get patient to reverse decision to refuse treatment is considered unethical

Ethical Theories & Principles

What does the principle of autonomy allow patients to do? have an attending physician decide their course of treatment. have the patient’s family decide their course of treatment. to allow the patient to decide their own course of treatment. Force the patient to have their family member sign a consent form for their treatment. Answer: C

Ethical Theories & Principles (cont.) Veracity Principle binds health care provider & patient to be truthful Problems w/ veracity center around issues w/ benevolent deception (withholding truth from patient for his or her own good) In most cases, telling truth is best policy

Ethical Theories & Principles (cont.) Nonmaleficence Principle obligates health care providers to avoid harming patient & to actively prevent harm when possible Problems occur when treatment has serious side effects or “double effect”

Ethical Theories & Principles (cont.) Beneficence Raises “do-no-harm” requirement to higher level Requires health care workers to contribute to health & well-being of their patients Dilemmas in this domain have led to development of “advanced directives”

Ethical Theories & Principles (cont.) Confidentiality Requires health care workers to respect patient’s right to privacy Qualified rather than absolute ethical principle In certain situations, health care workers are permitted to share patient’s medical history w/ others Risks of inadvertent disclosure of patient’s protected health information (PHI) has increased exponentially w/ advent of social networking sites

healthcare worker’s use of social networking sites. Which poses the newest, most contemporary risk of violating the patient’s right to confidentiality? staff meetings healthcare worker’s use of social networking sites. meeting with the patient’s family members. medical conferences Answer: B

Ethical Theories & Principles (cont.) Justice Involves fair distribution of care Balance must be found between health care expenses & ability to pay Rationing of health care services calls for “distributive justice” Compensatory justice calls for recovery of damages incurred from medical malpractice Less than 2% of healthcare costs are related to medical malpractice or negligence lawsuits Costs represent little, if any, impact on cost of healthcare

Ethical Theories & Principles (cont.) Role Duty Practitioners have duty to understand limits of role & to practice w/ fidelity Respiratory therapists must not perform duties outside defined role

Ethical Viewpoints & Decision Making Formalism Viewpoint relies on rules & principles Rules function apart from consequences of a particular act Act: justifiable if it upholds applied rules or principles

Ethical Viewpoints & Decision Making (cont.) Consequentialism Act: judged to be right or wrong based on consequences Commonly uses principle of utility—aims to promote greatest general good

Ethical Viewpoints & Decision Making (cont.) Mixed Approaches to moral reasoning Tries to capitalize on strengths of formalism & consequentialism (the principle of utility) Rule utilitarianism approach: variation of consequentialism Concerned w/ which “rule” would promote greatest good, instead of which “act?” Disadvantage: variability between caregivers Differences in values, educational levels Risk of inconsistent ethical decision making

Ethical Viewpoints & Decision Making (cont.) Virtue Ethics Founded not in rules or consequences but in personal attributes of character or virtue Allows established practices of profession to give guidance Ask, “How should I carry out my life if I am to live well?” Calls for behavior based on what “good practitioners” would do in similar circumstances

Which ethical viewpoint emphasizes the moral character of each individual? Formalism Virtue Ethics Consequentialism Role Duty Answer: B

Ethical Viewpoints & Decision Making (cont.) Intuitionism Ethical viewpoint holds there are certain self-evident truths, usually based on moral maxims “Treat others fairly” When decision making tool is unhelpful in certain situations, it will depend on intuitional abilities of any specific caregiver

Comprehensive Decision-Making Models

Comprehensive Decision-Making Models

Legal Issues Affecting Respiratory Care Systems of Law Public lawtwo major divisions: criminal law & administrative law Criminal law deals with acts against welfare & safety of public Administrative law consists of regulations set by government agencies

Legal Issues Affecting Respiratory Care (cont.) Systems of Law (cont.) Civil lawprotects citizens from others who might seek to take unfair advantage Civil courts decide if plaintiff has been wronged & degree of reparation required

Which system of law consists of the regulations set by government agencies? civil law criminal law administrative law ethical law Answer: C

Tort Law Civil wrong committed against individual or property for which court provides remedy Intentional tort involves willful act violating another’s interest Negligent tort is failure to perform one’s duties competently

Tort Law (cont.) “Causation” Revolves around whether acts of negligence were caused, in fact, & legal cause of damages “Proximate Causation” or “Legal Causation” Turns on foreseen ability Determines fairness to impose damages on defendant; tends to be retrospective analysis

Tort Law (cont.) Damages: another factor in negligence lawsuits; 3 types: Economic: awarded for economic loss Non-economic damages: pain, suffering, disability, disfigurement & loss of enjoyment of life Punitive damages Awarded to punish wrongful conduct & deter future unlawful conduct

Tort Law (cont.)

Tort Law (cont.) 3 classifications of malpractice: Criminal malpractice (e.g., assault & battery) Civil malpractice (e.g., negligence) Ethical malpractice (e.g., violations of professional ethics possibly resulting in censure)

Tort Law (cont.) 2 general defenses against intentional torts: 1. No intent to do harm 2. Patient gave consent to action, knowing risks involved

Avoiding Lawsuits Be aware of & conform to all legal aspects of licensure & standards of care Institutional risk management processes should be an ongoing component of hospital operation & professional development Every therapist malpractice insurance Active risk management practices & appropriate guest relations policies – 2 most effective tools in preventing malpractice litigation

have a malpractice insurance policy What can a respiratory therapist do to minimize the risk of being involved in a law suit? have a malpractice insurance policy respect the autonomy of a patient even if in doing so others may be harmed avoid the hospital’s risk management department Be aware of, and conform to all legal aspects of licensure and the standards of care Answer: D

HIPAA Health Insurance Portability and Accountability Act of 1996 (HIPAA) Congressional act (1996) to establish standards for privacy of individually identifiable health information Basic goal of act was to strike balance between: Protecting individuals’ health information, & Not impeding exchange of information needed to provide quality health care

What is the basic goal of HIPPA? balance between protecting individuals’ health information and providing quality health care. to help reduce cost of health care to ensure that all the help care providers accreditations are up to date. to ensure that patient’s never see their own medical chart information Answer: A

Medical Supervision RTs required by “scope of practice” to work under competent medical supervision RT’s employer, either physician or hospital, is liable for RT’s actions In some states, supervising physician may still be liable even if therapist is employed by hospital Legal theory of “failure to supervise” Respondeat superior (“let the master answer”)

Professional Licensure Issues Every RT should know, in detail: Respiratory Care Practice Act (Licensure Statute) Therapist driven protocols: Therapists permitted to exercise independent judgment Decision-making will be more frequently called into question in court Understand Causes of Discipline, including: Substance, abuse, domestic violence, sexual abuse, gross incompetence

Interaction of Ethics & The Law Corporate compliance officer (CCO) Oversees hospital’s business practices & makes sure conformity to law Available to discuss legal or ethical issues arising in course of care The Patient Protection And Affordable Care Act (PPACA) Passed by congress in 2010 Improves whistleblower protections for hospital workers

Interaction of Ethics & The Law (cont.) National Labor Relations Act (NLRA) Provides protection to hospital workers, even if they do not belong to a union Protects worker when he or she engages in an act that would benefit of all employees Example: RT asks supervisor to increase shift differential for all RT’s who work that shift

Interaction of Ethics & The Law (cont.) False Claims Act Forbids making false claims against government Provides severe sanctions against violators, including monetary: Possible repayment up to 3 times amount if false claim made against government health plan (i.e., Medicare, Medicaid) Possible civil penalties