Transcript Medical Ethics 1

Pearson's Comprehensive
Medical Assisting
Administrative and Clinical Competencies
Second Edition
CHAPTER
CHAPTER
3
Medical Law and Ethics
Lesson 1:
Law and Liability
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Lesson Objectives
•
•
•
•
Upon completion of this lesson, students
should be able to …
Define and spell the terms to learn for this
chapter.
Differentiate between criminal and civil
law.
Identify the four Ds of negligence.
Discuss what can be done to avoid a claim
of abandonment.
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Classification of the Law
Criminal Law
Civil Law
International
Law
Military Law
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Criminal Law
• Made to protect the public as a whole from
harmful acts of others
• Two categories:
– Felony
– Misdemeanor
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Criminal Law
• Felony: Carries a punishment of
imprisonment in a state or federal prison,
or death
– Murder
– Rape
– Robbery
– Practicing medicine without a license
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Criminal Law
• Misdemeanor: Less serious offense and
carries a punishment of fines or
imprisonment in jail for up to a year
– Traffic violations
– Disturbing the peace
– Theft
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Criminal Law
• Criminal Law and the Physician
– Physician’s license may be revoked or taken
away for conviction of a crime




Sexual misconduct
Murder
Violating narcotics laws
Practicing medicine without a license
Practice of medicine: Diagnosing and prescribing treatment or
medication.
The medical assistant must make sure to only assist the physician
and to not try to treat or diagnose a patient’s condition.
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Civil Law
• Concerns relationships between
individuals or between individuals and the
government
• Includes:
– Contract law
– Tort law
– Administrative law
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Civil Law
• Contract Law: Enforceable promises and
agreements between two or more persons
to do or not to do a particular action
• Tort Law: Protects a variety of injuries
and provides remedies for these injuries
• Tort: Wrongful act that is committed
against another person or property that
results in harm
There must be damage or injury to the patient that was
caused by the physician or the physician’s employee.
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Civil Law
• Intentional torts: The defendant
possessed the intent to do the act that
caused the plaintiff’s injuries
• Unintentional torts: Negligence – The
omission to do something which a
reasonable person would do, or doing
something which a prudent and
reasonable person would not do
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Civil Law: Intentional Torts
• Assault: Threat of immediate harm or
offensive contact or any action that
arouses reasonable apprehension of
imminent harm
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Critical Thinking Question
1. What is an example of assault in a
medical office?
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Civil Law: Intentional Torts
• Battery: Unauthorized and harmful or
offensive physical contact with another
person
– Protects a person’s reasonable sense of
dignity and safety
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Critical Thinking Question
1. What is an example of battery in a
medical office?
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Civil Law: Intentional Torts
• False imprisonment: Intentional
confinement or restraint of another person
without authority or justification and
without the person’s consent
– Victim may be restrained or confined by
 Physical force
 Barriers
 Threats of physical harm
 False assertion of legal authority
Threat of future harm or moral pressure doesn’t count.
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Critical Thinking Question
1. What is an example of false
imprisonment in a medical office?
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Civil Law: Intentional Torts
•
Defamation of Character: Negative
statements made by others during
his/her lifetime
– Plaintiff must prove that
1) Defendant made a negative statement of fact
about the plaintiff
2) The statement was intentionally or accidentally
published to a third party
Third person only needs to have seen or heard statement.
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Critical Thinking Question
1. What is an example of defamation of
character in a medical office?
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Civil Law: Intentional Torts
• Defamation of Character
– Slander: Name for an oral defamatory statement
– Libel: False statement that appears in print,
radio, or television broadcast







Letter
Newspaper
Magazine
Book
Photograph
Movie
Video
Publication of an untrue
fact is not the same as an
opinion.
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Critical Thinking Question
1. What is an example of this slander or
libel in a medical practice?
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Civil Law: Intentional Torts
• Invasion of Privacy: The unauthorized
publicity of information about a patient
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Critical Thinking Question
1. What is an example of invasion of
privacy in a medical practice?
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Civil Law: Unintentional Torts
• Negligence: Patient is injured as a result
of the health care professional not
exercising the ordinary standard of care
– Reasonable Person Standard: The type of
care that a “reasonable” person would use in
a similar circumstance
Negligence and malpractice are the same
thing.
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Critical Thinking Question
1. What is an example of negligence in a
medical practice?
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Civil Law: Unintentional Torts
• The plaintiff must prove proximate cause
– The defendant’s acts (or failure to act) directly
caused the injury
 Plaintiff: The person or group of people who file a
lawsuit
 Defendant: The person or group of people who
are accused of wrongdoing in a court of law
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Civil Law: Unintentional Torts
• Contributory negligence: Relates to the
patient’s contribution to the injury, which if
proven, would release the physician as the
direct cause
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Critical Thinking Question
1. What is an example of contributory
negligence in a medical practice?
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Civil Law: Unintentional Torts
• It is easier to prevent negligence than it is
to defend it.
• Physicians can take steps to avoid
negligence suits by:
– Protecting the physician-client relationship
– Being above any reproach in the performance
of their medical duties
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Civil Law: Unintentional Torts
• In order to obtain a judgment for
negligence against a physician, the patient
must be able to show the “four D’s”:
– Duty
– Dereliction or neglect of duty
– Direct cause
– Damages
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Civil Law: Unintentional Torts
• Duty: Refers to the physician-client
relationship
– Patient must prove that the relationship has
been established
– Established when patient has made an
appointment and been seen by the physician
– Further office visits and treatments
establishes that the physician had a duty or
obligation to the patient
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Civil Law: Unintentional Torts
• Dereliction or neglect of duty: Refers to
a physician’s failure to act as an ordinary
and prudent physician (a peer) within the
same community would act in a similar
circumstance when treating a patient
– Patient would have to prove that the
physician’s performance or treatment did not
comply with the acceptable standard of care
– Standard of care is based on the norm of the
ordinary and prudent physician
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Civil Law: Unintentional Torts
• Direct cause: Requires the patient to
prove that the physician’s derelict or
breach of duty was the direct cause for the
injury that resulted
• Damages: Refers to any injuries that were
received by the patient
– The court may award compensatory damages
to pay for the patient’s injuries
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Contract Law
• Concerned with a breach or neglect of an
understanding between two parties
• Contract: A voluntary agreement that two
parties enter into with the intent of mutual
benefit for both parties
– Consideration: Something of value that is a part
of the contract agreement (and must be legal)
– Offer: The physician offers to perform a service
– Acceptance of the offer: The patient agrees to
accept consideration in exchange for a fee
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Contract Law
• Considerations for a contract:
– Patient must be mentally competent at the
time the contract is made
– Patient must not be under influence of drugs
or alcohol at time the contract is entered
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Contract Law
• Breach of contract: Occurs when either
party fails to comply with the terms of the
agreement
• Abandonment: Once a physician has
agreed to take care of a patient, that contract
may not be terminated improperly
– Physician must give formal notice of withdrawal
from the case
– Physician must allow the patient enough time to
seek the services of another physician
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Contract Law
• Termination of Contract
– Generally occurs when treatment has ended
and fee has been paid
– Both physicians and patients have the right to
terminate the contractual relationship before
this point
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Contract Law
• A medical office should document any of the
incidents below with a certified letter:
–
–
–
–
Failure to pay for service
Missed appointments
Failure to follow instructions
The patient states (orally or in writing) that he or
she is seeking the care of another physician
 There are many reasons for this:
• Insurance changes
• Moving away
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Contract Law
• Collections
– Laws have been enacted to provide protection
against unscrupulous collection practices that
harm individuals
– The MA is responsible for following the
administrative procedures these laws require
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Laws Governing Collection
•
•
•
•
Equal Credit Opportunity Act of 1975
Fair Debt Collection Practices Act of 1978
Fair Credit Reporting Act of 1971
Notice on “Use of Telephone for Debt
Collection”
• Truth in Lending Act of 1969
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Contract Law
Law
Description
Equal Credit
Opportunity Act of
1975
Fair Debt Collection
Practices Act of
1978
Fair Credit Reporting
Act of 1971
Prohibits discrimination in the
granting of credit
Provides a guide for determining
what are considered the fair
collections practices for creditors
Provides guidelines for collecting
an individual’s credit information
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Contract Law
Law
Description
Notice on “Use of
Telephone for Debt
Collection” from the
FCC
Truth in Lending Act
of 1969
Provides guidelines for the specific
times that credit collection phone
calls can be made
Requires a full, written disclosure
concerning the payment of any fee
that will be collected in more than 4
installments
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Professional Liability
• Average liability award granted to plaintiffs
in medical malpractice lawsuits is over
$1 M
• Major issues involve:
– Standard of care
– Legal contracts
– Informed consent
– Patient/physician relationship
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Critical Thinking Question
1. Why would one sue a physician? Give
some examples.
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Respondeat Superior
• Let the master answer”
• Physician is liable for the negligent actions
of anyone working for him or her
• Ultimate responsibility rests with the
physician
• In some cases and states, both the
employee and physician are liable for
negligent actions
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Critical Thinking Question
1. Is Respondeat Superior this fair? Why or
why not?
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Standard of Care
• Physicians are under
no obligation to treat
everyone that comes
into the office
• However, once the
physician accepts the
patient for treatment,
a physician/patient
relationship has been
established
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Standard of Care
Asserts that the physician must provide the
same knowledge, care, and skill that a
similarly trained physician would provide
under the same circumstances in the same
locality.
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Expectations of Standard
of Care
• Physicians are expected to perform the
same acts that “reasonable and prudent”
physicians would perform
• Physicians are expected to not perform
any acts that “reasonable and prudent”
physicians would not perform
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Expectations of Standard
of Care
• Physicians are expected to exhaust all the
resources available to them when they are
treating a patient:
– Taking a thorough medical history
– Giving a complete physical examination
– Conducting the necessary laboratory tests
and x-rays
• Physicians are not expected to expose
patients to undue risks
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Standard of Care
• If the physician
violates this standard
of care, he or she is
liable for negligence
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Standard of Care for Medical
Assistants
• MAs must adhere to a
standard of care
• Standard of care
depends on
–
–
–
–
–
Training
Skills
Experience
Education
Assigned responsibility
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Standard of Care Guidelines
• Never go outside of your competency level
• If you do, you risk being sued for
negligence
• Know the applicable laws in your state
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Critical Thinking Question
1. What are some of these laws in your
state?
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Malpractice
• Professional misconduct or demonstration
of an unreasonable lack of skill with the
result of injury, loss, or damage to the
patient
– Every mistake or error is not considered
malpractice
– Outcome of treatment is not the determining
factor
– Physicians and employees must adhere to the
standard of care
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Medical Malpractice
• Signing a consent for treatment does not mean
that the patient agrees to substandard treatment
• Medical malpractice can include:
–
–
–
–
–
–
–
–
Medical errors
Improper diagnosis
Failure to diagnose
Failure to advise of diagnosis
Lack of informed consent
Abandonment
Surgical procedure error
Equipment/supplies left in patient during surgery
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Medical Malpractice
• Common hospital/physician medical
malpractice cases:
– Birth injury: Medical error that results in an
injury at birth
– Cerebral palsy: Medical error that results in
cerebral palsy, usually at birth and labor
– Failure to diagnose: Treatment for a disease
patient does not have or failing to diagnose a
severe problem
 Especially breast cancer or lung cancer
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Medical Malpractice
• Common hospital/physician medical malpractice
cases:
– Medication errors: A common problem is inability to
read handwriting, causing errors
– Wrongful death: Death as a result of medical
negligence
– Nursing home abuse: Can be physical,
psychological, emotional, and financial
– Defective drugs or products: Can involve the
manufacturer, physician, and hospital
To view information related to patient safety click here or visit
www.fda.gov
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Malpractice Insurance
• Employers carry insurance to cover acts of
their employees during the course of
carrying out their duties
• This is general liability coverage
• Some physicians carry a rider to cover any
negligence on the part of clinical
assistants
Tip: All MAs should request to see their employer’s
“certificate of insurance” to ensure they are covered under
the policy.
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Critical Thinking Question
1. What are some situations that might
occur in which a patient is injured, but
the physician hasn’t done anything
wrong?
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Malpractice Insurance
• If you are not covered by your employer’s
malpractice policy, you must purchase
your own professional liability coverage
Click here or go to http://www.hpso.com for an
Internet example of a free insurance quote.
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Critical Thinking Question
1. Where will you get professional liability
insurance if your employer does not
cover you?
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Res Ipsa Loquitur
• “The thing speaks for itself”
• States that the breach of duty is so
obvious that it does not need further
explanation
• Applies to blatant negligent mistakes on
the part of the physician or employee
Pearson's Comprehensive Medical Assisting: Administrative and Clinical Competencies, 2/e
Beaman • Fleming-McPhillips • Routh • Gohsman • Reagan
Copyright ©2011 by Pearson Education, Inc.
Upper Saddle River, New Jersey 07458
All rights reserved.
Critical Thinking Question
1. What are examples of blatant negligence
for a physician or healthcare worker?
Pearson's Comprehensive Medical Assisting: Administrative and Clinical Competencies, 2/e
Beaman • Fleming-McPhillips • Routh • Gohsman • Reagan
Copyright ©2011 by Pearson Education, Inc.
Upper Saddle River, New Jersey 07458
All rights reserved.
Statute of Limitations
• Period of time during which a patient has
to file a lawsuit
• If the lawsuit is not filed within the statute
of limitations period, the court will not hear
the case
• Varies from state to state
Pearson's Comprehensive Medical Assisting: Administrative and Clinical Competencies, 2/e
Beaman • Fleming-McPhillips • Routh • Gohsman • Reagan
Copyright ©2011 by Pearson Education, Inc.
Upper Saddle River, New Jersey 07458
All rights reserved.
Statute of Limitations
• Rule of discovery: Beginning of the statute
of limitations period when the problem is
discovered
– This could be long after the treatment or incident
• A minor may sue for a problem when he or
she becomes an adult (18 years old)
– This revises the statute of limitations to the time
period it takes for minor to reach 18
– Or, the minor may sue immediately after the
incident through guardian ad litem
Pearson's Comprehensive Medical Assisting: Administrative and Clinical Competencies, 2/e
Beaman • Fleming-McPhillips • Routh • Gohsman • Reagan
Copyright ©2011 by Pearson Education, Inc.
Upper Saddle River, New Jersey 07458
All rights reserved.
Good Samaritan Laws
• State laws that help to protect a healthcare
professional from liability while giving
emergency care to an accident victim
– No one is required to provide care to an
emergency victim (except in Vermont)
– Someone responding to an emergency is only
required to act within his or her skill and training
– This requirement places physicians at a high
standard
– MAs would only be required to act within their
training
Pearson's Comprehensive Medical Assisting: Administrative and Clinical Competencies, 2/e
Beaman • Fleming-McPhillips • Routh • Gohsman • Reagan
Copyright ©2011 by Pearson Education, Inc.
Upper Saddle River, New Jersey 07458
All rights reserved.
Defamation of Character
• Scandalous statements about someone
that can injure the person’s reputation
• Can result even when the statement is
true
– Slander: When the defaming statement is
spoken
– Libel: When the defaming statement is written
• MAs have access to privileged information
that may be harmful to the patient’s
reputation
Pearson's Comprehensive Medical Assisting: Administrative and Clinical Competencies, 2/e
Beaman • Fleming-McPhillips • Routh • Gohsman • Reagan
Copyright ©2011 by Pearson Education, Inc.
Upper Saddle River, New Jersey 07458
All rights reserved.
Questions?
Pearson's Comprehensive Medical Assisting: Administrative and Clinical Competencies, 2/e
Beaman • Fleming-McPhillips • Routh • Gohsman • Reagan
Copyright ©2011 by Pearson Education, Inc.
Upper Saddle River, New Jersey 07458
All rights reserved.