1. Copyright © 2010 Delmar, Cengage Learning. ALL RIGHTS RESERVED. Chapter 7 Legal Considerations

2. Copyright © 2010 Delmar, Cengage Learning. ALL RIGHTS RESERVED. Sources of Law Constitutional law –Constitution and 27 amendments Statutory law –Laws made by states Common law –“Judge-made” law

3. Copyright © 2010 Delmar, Cengage Learning. ALL RIGHTS RESERVED. Sources of Law Criminal law –Malfeasance Illegal conduct by an official –Felony Serious crimes and serious punishments –Misdemeanor Lesser crimes and lesser punishments

4. Copyright © 2010 Delmar, Cengage Learning. ALL RIGHTS RESERVED. Sources of Law Civil law –Misfeasance Improper execution of lawful act –Nonfeasance Failure to perform an act or official duty –In a civil case, a plaintiff brings charges against a defendant –Common forms of civil law are administrative, contract, and tort law

5. Copyright © 2010 Delmar, Cengage Learning. ALL RIGHTS RESERVED. Administrative Law IRS Medicare/Medicaid Title VII of the Civil Rights Act of 1964 Federal Age Discrimination Act of 1967 Uniform Anatomical Gift Act of 1968

6. Copyright © 2010 Delmar, Cengage Learning. ALL RIGHTS RESERVED. Administrative Law Regulation Z of the Consumer Protection Act of 1967 –Truth in Lending Act Occupational Safety and Health Act of 1967 (OSHA)

7. Copyright © 2010 Delmar, Cengage Learning. ALL RIGHTS RESERVED. Administrative Law Controlled Substances Act of 1970 –Regulates persons who administer, prescribe, or dispense controlled substances –Identifies controlled substances in Schedules I–V with regulations for each schedule

8. Copyright © 2010 Delmar, Cengage Learning. ALL RIGHTS RESERVED. Administrative Law Click Here to play the video

9. Copyright © 2010 Delmar, Cengage Learning. ALL RIGHTS RESERVED. Administrative Law Americans with Disabilities Act of 1990 (ADA) –Title I prevents discrimination in employment –Titles II–IV mandate access to public services by individuals with disabilities The Family and Medical Leave Act (FMLA) of 1993

10. Copyright © 2010 Delmar, Cengage Learning. ALL RIGHTS RESERVED. Administrative Law The Health Insurance Portability and Accountability Act of 1996 (HIPAA) –Requires national standards for electronic health care transactions –Assists in making health insurance more affordable and accessible when people change or lose their jobs –Identified in Titles I–VII

11. Copyright © 2010 Delmar, Cengage Learning. ALL RIGHTS RESERVED. Administrative Law Click Here to play the video

12. Copyright © 2010 Delmar, Cengage Learning. ALL RIGHTS RESERVED. Contract Law Expressed contracts –Written or verbal Implied contracts –Indicated by actions Critical elements to every contract

13. Copyright © 2010 Delmar, Cengage Learning. ALL RIGHTS RESERVED. Contract Law Termination of contracts –Patient discharges provider –Provider withdraws from patient care –Treatment no longer needed by patient

14. Copyright © 2010 Delmar, Cengage Learning. ALL RIGHTS RESERVED. Tort Law Wrongful act other than a breach of contract –State medical practice acts Govern licensure, standards of care, professional liability, confidentiality, torts (Refer to Table 7-1) May regulate personnel employed in ambulatory care settings –Medical assistants may be regulated under a nurse practitioner’s license, a physician’s license, or by their own state’s requirements –Some states regulate medical assistants’ ability to perform certain clinical functions

15. Copyright © 2010 Delmar, Cengage Learning. ALL RIGHTS RESERVED. Tort Law Standard of Care –4 Ds of Negligence Duty of care Derelict: breach of duty of care Direct cause: a legally recognizable injury occurs as a result of the breach of duty of care Damage: wrongful activity must have caused the injury or harm that occurred

16. Copyright © 2010 Delmar, Cengage Learning. ALL RIGHTS RESERVED. Tort Law Standard of Care –Medical Assistant’s role in Negligence Torts are intentional or negligent Intentional torts are deliberate acts violating another’s rights Negligent torts are not deliberate; result of omission or commission of an act Res ipsa loquitur and respondeat superior

17. Copyright © 2010 Delmar, Cengage Learning. ALL RIGHTS RESERVED. Tort Law Standard of Care –Battery: unprivileged touching of one person by another –Defamation of character –Libel –Slander –Invasion of privacy

18. Copyright © 2010 Delmar, Cengage Learning. ALL RIGHTS RESERVED. Informed Consent Nature of any procedure and how it is performed Possible risks as well as expected outcomes of any procedure Any other methods of treatment and those risks

19. Copyright © 2010 Delmar, Cengage Learning. ALL RIGHTS RESERVED. Informed Consent Risks of no treatment Implied consent Consent and Legal Incompetence –Mature minors –Emancipated minors

20. Copyright © 2010 Delmar, Cengage Learning. ALL RIGHTS RESERVED. Risk Management Practicing good risk management makes the MA and provider less vulnerable to litigation See the list on page 105 for ways to avoid incidents that may lead to litigation

21. Copyright © 2010 Delmar, Cengage Learning. ALL RIGHTS RESERVED. Civil Litigation Process Subpoenas –Some records are protected and will require a court order –Subpoena duces tecum –HIPAA requires written policies regarding release of information

22. Copyright © 2010 Delmar, Cengage Learning. ALL RIGHTS RESERVED. Civil Litigation Process Discovery –Interrogatory –Deposition –Expert witness Pre-trial conference –Alternative Dispute Resolution (ADR) Mediation Arbitration

23. Copyright © 2010 Delmar, Cengage Learning. ALL RIGHTS RESERVED. Civil Litigation Process Trial –Judge only makes decision –Judge and jury make decision –See outline of civil case process in the text Statute of Limitations

24. Copyright © 2010 Delmar, Cengage Learning. ALL RIGHTS RESERVED. Public Duties Reportable Diseases and Injuries –See possible list at www.cdc.gov/www.cdc.gov/ –Written and telephone reporting Abuse –Child abuse –Elder abuse –Intimate partner violence

25. Copyright © 2010 Delmar, Cengage Learning. ALL RIGHTS RESERVED. Public Duties Good Samaritan Law –Encourages health professionals to render aid at the scene of an accident –Must only respond within scope of knowledge and training

26. Copyright © 2010 Delmar, Cengage Learning. ALL RIGHTS RESERVED. Advanced Directives Physician Orders for Life-sustaining Treatment or POLST Living wills and health care directives Samples available at www.USlegalforms.com www.USlegalforms.com Durable power of attorney for health care

27. Copyright © 2010 Delmar, Cengage Learning. ALL RIGHTS RESERVED. Advanced Directives See www.compassionandchoices.orgwww.compassionandchoices.org Patient Self-Determination Act of 1991 Advanced directives provided to patients’ providers, family members, any agent identified