1. Medical Jurisprudence
Peter Bidey, DO, MSEd
Family Medicine Residency Program Director
Suburban Community Hospital
Adapted from Lecture-
Richard M. Watson, DO
Lankenau Medical Center
Last Updated: 2/13/16

2. Medical Jurisprudence
Definition: The branch of the law that deals with the application of law to medicine.

3. Identify and discuss high-yield topics.
Lecture Objectives
Identify and discuss high-yield topics.

4. Essentials of Medical Ethics
Autonomy: patients have the right to make their own informed decisions even if contrary to medical advice.
Beneficence: care be provided with the intent of doing good for the patient.
Non-maleficence: provide care under the assumption you are not doing harm or minimizing harm to the patient.
Justice: distribution of your care and resources equitably.

5. HIPAA

6. Definition of HIPAA
Privacy rule requires health care providers to obtain patient authorization to use or disclose individually identifiable health information with certain broad exceptions.

7. An eight year old child is brought to your office for a school entry examination. During the exam you notice multiple bruises on the child’s back and legs in various stages of healing. You suspect child abuse. Which of the following options is the most appropriate action for you to take?
Confront the child’s patient and threaten them with physical violence if it happens again.
Call the child’s neighbor to have them monitor the situation for you.
Promptly notify the proper authorities about your suspicions.
Take the child into your custody.

8. An eight year old child is brought to your office for a school entry examination. During the exam you notice multiple bruises on the child’s back and legs in various stages of healing. You suspect child abuse. Which of the following options is the most appropriate action for you to take?
Confront the child’s patient and threaten them with physical violence if it happens again.
Call the child’s neighbor to have them monitor the situation for you.
Promptly notify the proper authorities about your suspicions.
Take the child into your custody.

9. HIPAA Exceptions Notification of patient death to authorities
Court order
Serious contagious disease (CDC reporting)
Child abuse (must report) or suspicion of child abuse
Serious and immediate threat of harm to identifiable person(s).
Question writers look for exceptions

10. Emergency Medical Treatment & Labor Act
EMTALA
Emergency Medical Treatment & Labor Act
Significance: any patient presenting to the ED is to be treated and stabilized regardless of medical insurance.

11. Advanced Care Directive

12. An eighty year old man is brought to the ED by ambulance with his wife after a sustaining injuries in a motor vehicle accident. The man is alert and oriented but has suffered serious, potential life threatening, lower extremity injuries. His wife informs you his advanced directives on file state that he does not wish to have his life prolonged in the event of serious medical disease/injury. What should you do next?
Make the patient comfortable with proper pain management and contact hospice.
After explaining to the patient the extent of his injuries, suggested treatment and potential outcomes, ask the patient for his decision.
Move on to your next patient in need of medical attention.
Medical care should be directed by his wife.

13. An eighty year old man is brought to the ED by ambulance with his wife after a sustaining injuries in a motor vehicle accident. The man is alert and oriented but has suffered serious, potential life threatening, lower extremity injuries. His wife informs you his advanced directives on file state that he does not wish to have his life prolonged in the event of serious medical disease/injury. What should you do next?
Make the patient comfortable with proper pain management and contact hospice.
After explaining to the patient the extent of his injuries, suggested treatment and potential outcomes, ask the patient for his decision.
Move on to your next patient in need of medical attention.
Medical care should be directed by his wife.

14. Definition
A legal document in which a person specifies what actions should be taken for their health if they are no longer able to make decisions for themselves because of illness or incapacity.
Does not come into effect until the patient is incapable of making their own decisions.
Key Point

15. Types Living Will: list of items the patient wants or doesn’t want.
Durable Power of Attorney: patient appoints someone to make decisions for them.

16. Patient Self Determination Act
The PSDA requires all health care agencies to recognize the living will and durable power of attorney for health care.
The Act applies to hospitals, long-term care facilities, and home health agencies that get Medicare and Medicaid reimbursement.
Under the PSDA, health care agencies must ask you whether you have an advance directive.
They also must give you information about your rights under state law.
Introduced in House (04/03/1990)
Patient Self Determination Act of Amends titles XVIII (Medicare) and XIX (Medicaid) of the Social Security Act to require hospitals, skilled nursing facilities, home health agencies, hospice programs, and health maintenance organizations to: (1) inform patients of their rights under State law to make decisions concerning their medical care; (2) periodically inquire as to whether a patient executed an advanced directive and document the patient's wishes regarding their medical care; (3) not discriminate against persons who have executed an advance directive; (4) ensure that legally valid advance directives and documented medical care wishes are implemented to the extent permitted by State law; and (5) provide educational programs for staff, patients, and the community on ethical issues concerning patient self-determination and advance directives.
Directs the Secretary of Health and Human Services to: (1) arrange with the Institute of Medicine of the National Academy of Sciences for a study assessing the implementation of directed health care decisions; and (2) develop and implement a demonstration project in selected States to inform the public of the option to execute advance directives and a patient's right to participate in and direct health care decisions.

17. Witnesses Two (2) witnesses required. Must be at least 18 yo.
Cannot be the healthcare provider, work for the healthcare provider, work at the place you live.
Must know the patient.
One (1) of the two witnesses cannot be related or benefit financially after the patient’s death.
Must see the patient sign the form.
NOTE: DIFFERENT STATES CAN AFTER DIFFERENT SITUATIONS

18. Informed Consent

19. A 15 year old girl is brought to the ED by fire rescue
A 15 year old girl is brought to the ED by fire rescue. She is unconscious. CT scan confirms intracranial injuries requiring emergency surgery. Her parents are not available to provide consent. What is the best available option?
Perform the life saving surgery since consent is implied in this situation.
Do your best to stabilize the patient without performing surgery.
Obtain a court order to perform the life saving surgery.
There is nothing you can do without parental consent.

20. A 15 year old girl is brought to the ED by fire rescue
A 15 year old girl is brought to the ED by fire rescue. She is unconscious. CT scan confirms intracranial injuries requiring emergency surgery. Her parents are not available to provide consent. What is the best available option?
Perform the life saving surgery since consent is implied in this situation.
Do your best to stabilize the patient without performing surgery.
Obtain a court order to perform the life saving surgery.
There is nothing you can do without parental consent.

21. Five Components of Informed Consent
Nature of procedure
Risk of procedure
Alternatives to procedure
Expected benefits of procedure
Potential consequences of not doing anything
Opportunity for questioning

22. Application of Consent
Applies to adults with capacity to make decisions
Consent is implied in cases of emergency
Classic Boards Question about beneficence

23. Consent of Minors
Minors (under age 18) presumed to be incompetent to make their own decisions.
Only parents or legal guardians can give legal consent
Can other family members do it. Give scenerio.

24. Exceptions to Parental Consent
Emergency Situations: minor’s life is at risk or at risk of serious harm.
Emancipated minor: married, divorced, independent & self supporting.
Specific Health Care Situations: STD tx, contraception, prenatal care, substance abuse
Each State can vary
They like to write about exceptions
Emancipation by court or by act of law refers to a formal legal process by which a judge issues an order declaring that the minor has certain rights usually granted to an adult for a specific purpose. This almost never happens and is rarely needed in Pennsylvania. Most often, laws affecting a child’s access to necessities, like educational supports, health services and other benefits, will provide exceptions for parental permission in certain situations. Each state has different laws governing legal emancipation and some states have no law or legal process concerning emancipation. Generally, the rights granted to legally emancipated minors include things such as the ability to sign legally binding contracts,ii Juvenile Law Center – April 2014 – Reprint with permission only 7 like a lease, to decide where you want to live, and to make all your own medical decisions. A legally emancipated minor is also responsible for any bills or contracts they sign and is financially responsible for him or herself. No one else —a parent or relative—is legally required to take care of a minor who has been legally emancipated. What are the requirements for judicial emancipation in Pennsylvania? In Pennsylvania, there is no emancipation statute or law. Instead, cases have been decided in courts across that state that provide guidance on what a court requires to issue an order of emancipation to a minor.iii The courts in Pennsylvania have said that “the touchstone of emancipation refers to the minor's establishment as a self-supporting individual independent of parental control. When a minor still has a need for care, custody and maintenance, the minor is not emancipated….” iv In addition, the courts have made clear that emancipation by a court order is not a permanent status. If an emancipated minor is still under age 18 and becomes unable to support herself, she is no longer emancipated.v In Pennsylvania, to be emancipated by a court you must show a judge that you are in the position to live on your own and support yourself. Some things that would tend to show that you can live on your own and support yourself include:  living apart from your parents,  being able to financially support yourself, and  being able to make smart, mature and responsible decisions about your own care and well-being.vi It is important to note that a court will use things that have already occurred as the basis for its emancipation order. A minor who wishes to be emancipated must demonstrate to the court that he or she already possesses these criteria; not that he or she aspires to them. These are difficult things for any youth to show, especially if they are in school full time. If you feel you have demonstrated these qualities and are eligible to become emancipated, in general you can go to your county’s juvenile or family court to begin the process. May a judge automatically grant an order of emancipation if a minor is married? No, not automatically. The main question a judge asks in considering an emancipation petition is whether the youth is living apart from his or her parents and able to support him or herself. Whether or not a minor is married may affect the answer to those questions, but being married, by itself, does not satisfy this criteria. Whether the minor is married or not, the court must consider the minor’s living situation and how he or she is financially supported. vii If the minor is married and cannot support him or herself, it is not likely that the court would issue an emancipation order. Juvenile Law Center – April 2014 – Reprint with permission only 8 May a judge automatically grant an order of emancipation if a minor has a child? No, not automatically. If a minor has a baby, the minor mother can consent to all of her own health care (except abortion), but she is not emancipated for general purposes. A minor parent does have full rights to her child, including all decision making authority regarding the child, but she does not gain any other rights when she has a child. For example, until the minor parent turns age 18 her parents may still make many of the legal decisions regarding her life.

25. Parens patriae
Grants power to the state to protect persons who are legally unable to act on their own behalf.
Parents don’t have the right to deny life saving care to minors due to religious exemption.
Good boards questions:
Parens patriae is Latin for "parent of the nation" (lit., "parent of the fatherland"). In law, it refers to the public policy power of the state to intervene against an abusive or negligent parent, legal guardian or informal caretaker, and to act as the parent of any child or individual who is in need of protection. For example, some children, incapacitated individuals, and disabled individuals lack parents who are able and willing to render adequate care, thus requiring state intervention.

26. Informed Refusal
Patient must be fully informed of the effects and potential outcomes of refusing therapy including potential harm.

27. Malpractice

28. Definition of Malpractice
Malpractice is a preventable error in patient care that deviates from the standard of care in a local community resulting in harm to the patient.
A law suit needs to be filed within the statute of limitations.
Criteria

29. Common Allegations Failure to diagnose Delay in diagnosis
Failure to follow up
Back pain example: treat conservatively for 1 year then determine problem exists.

30. Malpractice Claim Criteria
Duty Owed
Duty Breached
Causation
Damages
Physician only needs to prove one does not exist.
Last part is an important point

31. Duty Owed Has a doctor-patient relationship been established?
A doctor-patient relationship is formed if a partial history is taken and medical advice has been provided.

32. Duty Breached
Has the physician failed to fulfill his/her duties to the patient?
Did your actions fail to comply with the standard of care in the local community?

33. Causation Are your actions responsible for the patient’s complaint?
Can the actions of the physician be attributed to the patient’s complaint?
Are your actions responsible for the patient’s complaint?

34. Damages Maybe, maybe not.
Did the actions of the physician result in harm?
Maybe, maybe not.
What can a physician do?

35. What to Do?
Do what a reasonable, cautious, prudent physician would do.
Follow the guidelines when practicing. Refer to Evidenced Based Medicine when possible.
Many questions based on existing guidelines
Guidelines and Evidenced Based Medicine are unbiased, current, comprehensive, recognizable and created by experts in the field.

36. Documentation
Poor medical record documentation is the leading reason of medically defensible malpractice cases resulting in settlement or lost at trial.
If poor documentation is what hangs the physician at trial, what gets him/her there in the first place.
If you didn’t document it, you didn’t do it !

37. Non Compliance
Ultimately the more learned partner - the physician - should take the lead in giving patients information and urging them to comply with recommendations.
Then document.
Document why the established goal is not being achieved and that the patient has been informed of the risks of continued noncompliance.

38. Copying & Pasting
The copying and pasting of one provider’s note into another provider’s is:
Extremely common
Fraudulent
Indefensible
Can produce inaccurate information
Due to new EMRs more question to come

39. Patient Termination

40. You can terminate or fire a patient from your practice for all of the following reasons except:
Failing to pay their bills for your service.
Not adhering to prescribed therapy.
Being abusive to office staff.
Incompatible personality.
None, all of the above are acceptable reasons for patient termination

41. You can terminate or fire a patient from your practice for all of the following reasons except:
Failing to pay their bills for your service.
Not adhering to prescribed therapy.
Being abusive to office staff.
Incompatible personality.
None, all of the above are acceptable reasons for patient termination

42. Reasons for Patient Termination
Non Compliant Patient
Patient abusive to staff
Patient fails to pay bills
Incompatibility of personality
Disagreement with recommended therapy
Continual cancellation of appointments
Dishonesty
Initiation of legal proceedings against the physician

43. How to Document a Patient Firing
Medical record should contain:
Objective documentation of rational reason
Use a professional tone
Include a referral resource for patient to find a new physician
Provide adequate notice. Typically 30 days notice.
Absolutely no limiting of care during the notice period.
Maintain a copy of the letter of termination in the patient record.
Provide a copy of medical records upon receipt of proper authorization.

44. The Thing Speaks for Itself
Res Ipsa Loquitur
The Thing Speaks for Itself
Meaning: no single person can be identified for an obvious negligent act so all involved are held liable.
Example: patient goes to the OR for elective cholecystectomy, suffers a fractured arm while under anesthesia that is noticed post-op.

45. Respondent Superior
Let the Master Answer
Meaning: in many situations, the employer (physician) is responsible for the actions of their employees.
Example: patient calls office to speak to physician for medical advice. Instead, inappropriate medical advice is provided by the physician’s medical assistant resulting in harm.

46. Questions?