Legal Aspects Midterm

Hierarchy of laws

Constitution is the highest law in the land and statutes and regulations need to be consistent with the constitution.

A statute is a law passed by legislature. A rule or regulation is a law issued by an agency.

The legislature grants power to agencies to issue rules or regulations. A rule or regulation has to be consistent with the power granted to the agency, laws passed by the legislature, and the constitution.

Common law is law that is made when judges interpret other sources of law. Common law must be consistent with the constitution, statutes, and rules or regulations.

Separate sovereigns

Federal courts and agencies have limited power. If a lawsuit is not related to a federal law, courts usually cannot hear the lawsuit.

State constitutions must be consistent with the US Constitution but can provide more rights.

What does the First Amendment protect people from?

The First Amendment protects the people from government restrictions on their religion, speech, freedom of the press, and the right to assemble in peacefully.

What does the Fifth and Fourteenth Amendment protect people from?

The Fifth and Fourteenth Amendment protect the people from government deprivation of rights without due process of law. The Fourteenth Amendment also ensures equal protection under the law.

A person filing a lawsuit must:

Have standing because they were harmed.

File in a court with jurisdiction over the person being sued and with jurisdiction over the matter at issue.

Prove the case is not moot because the harm is likely to reoccur or there needs to be some action to make the person whole.

(The Patient/Practitioner Relationship) When a relationship is formed (at common law and in the current legal framework):

At common law, there is no duty to treat and the parties can enter into an agreement at any time.

Under statute, a practitioner may have an obligation to treat such as the obligation to stablize under EMTALA.

When is a contract deemed accepted?

A contract is deemed accepted when the treatment is rendered but it can also be accepted through actions of the patient.

How can a relationship be formed via contract?

A contract can be express or implied.

Express contract

An express contract is a written agreement to do something, in this case, to provide care.

implied contract

An implied contract is not written and has to be inferred from the actions of the parties.

Can a relationship be formed indirectly?

A relationship can be formed indirectly, such as through the practitioner’s agreement with a hospital to treat patients who seek services.

EMTALA requirements

If a hospital with an emergency room accepts Medicare patients, EMTALA requires that the hospital evaluate any patient who presents to the emergency room with an evaluation to determine if an emergency exists regardless of the individual’s ability to pay.

If an emergency exists, what does EMTALA require?

EMTALA requires that the patient be stabilized or transferred to another facility.

a. transfers cannot occur unless the patient requires transfer and (1) the patient is informed of the risk of transfer and the hospital’s obligation to treat the patient; (2) a physician certifies that the benefits of transfer outweigh the risks; or (3) a qualified medical professional and a physician certify that transfer outweighs the risks.

b. Transfer cannot occur unless to an appropriate facility, through qualified personnel, and the hospital provides the new facility with all available medical records.

Intentional Torts

Battery

Elements: 1. a person intended to cause harmful or offensive conduct, 2. contact occurred

Assault

Elements: 1. they acted with intent to cause harmful or offensive contact or with the intent to put someone in apprehension of such contact. 2. the person is put in apprehension of such contact occurring.

Intentional Infliction of Emotional Distress

Elements 1. a person’s extreme or outrageous conduct. 2. intentionally or recklessly. 3. causes severe emotional distress to another person

Negligence Torts

Elements: Duty, Breach of duty, But for causation, Proximate causation, harm or damages

Defenses to Torts

Consent (implied and express), necessity, self-defense, assumption of risk

(Professional Licensing) What are the goals of professional licensing, including healthcare?

ensure quality of services, regulate competition, set a standard for malpractice litigation, set a standard for credentialing, define the practice and scope of the profession.

When is a healthcare facility liable for the negligence of its licensed professionals?

How does the facility’s relationship with the professional affect liability?

How is liability different for employees versus contractors?

i. Liability for contractors is limited unless the contractor is considered an agent for the facility.

ii. A hospital can avoid liability for a contractor’s actions by giving meaningful notice of the contractor’s status.

What is an agency relationship?

an agency relationship is a situation where one party gives another party permission to speak and act on their behalf

(Medical Malpractice, Medical Negligence and Negligent Credentialing) Explain the difference between medical malpractice and negligence

Medical malpractice is the failure to comply with a standard of care.

Medical negligence does not involve a standard of care and is closer to a mistake.

Liability cases involving treatment or diagnosis are medical malpractice cases. Malpractice cases require a practitioner/patient relationship, negligence cases do not.

When is a hospital liable under ordinary negligence to a patient?

Hospitals have a duty of ordinary care to maintain their facility and the equipment being used.

Hospitals must hire, supervise, and retain competent nurses and other staff. this includes the obligation to re-review their credentials.

Hospitals are liable separate from the standard of care for having policies to protect patients.

When does negligent credentialing occur?

Negligent credentialing occurs when a facility grants or retains practitioner credentials despite the practitioner having disqualifying factors.

What is the Indiana standard for negligent credentialing?

THe hospital failed to meet the standard of reasonable care in the selection of the physician (orther practitioner) it granted credentials to whose treatment formed the basis for the underlying malpractice claim.

WHile practicing with those negligently granted credentials, the physicians (or other practitioner) breached the standard of care.

The negligent credentialing was the proximate cause of the plantiff’s injuries.

Is negligent credentialing considered malpractice in Indiana?

For negligent credentialing to fall within the scope of Indiana’s Medical Malpractice Act, the credentialing must have resulted in medical malpractice.

How is malpractice defined in Indiana’s medical malpractice act?

Malpractice is a tort or breach of contract based on healthcare or professional services that were provided or should have been provided by a healthcare provider to a patient.

How does a health care provider qualify for liability protection under Indiana’s medical malpractice act?

They have to file proof of financial responsibility with the Department of Insurance and pay a surcharge.

What is the statute of limitations under Indiana’s medical malpractice act?

Two years unless the patient is less than six years old. Patients less than six have until their eighth birthday.

How does filing a proposed compliant affect the statute of limitations under Indiana’s medical malpractice act?

it pauses the statute of limitation for a period of up to ninety days.

Who can file a compliant under Indiana’s medical malpractice act?

a patient or their representative

Do medical malpractice claims under $15,000 have to be filed with the Indiana Department of Insurance?

no

Is a practitioner-patient relationship required before finding that medical malpractice has occurred?

yes

What are the three standards of care used in medical malpractice cases?

Strict locality: the practitioner is measured against the standard in the specific locality where the care took place.

Modified locality: the practitioner is measured against the standard in the specific locality where the care took place and similar localities.

National standard of care: the practitioner is measured against a nationwide standard

What is the plaintiff’s responsibility in a medical malpractice case?

To present testimony demonstrating the standard of care through the use of witnesses that they have qualified as experts

What happens in a medical malpractice case if two schools of thought exist on standards of care?

If two schools of thought exist on standards of care and both schools of thought are medically sound, a court will not choose between them. The defendant must show that two schools of thought exist in order to be found not liable.

(provider liability) What is the corporate practice of medicine doctrine and how does it affect healthcare?

a. the corporate practice of medicine doctrine is a prohibition of=n businesses from practicing medicine. Only individuals can do so.

b. Indiana has a corporate practice of medicine statute.

c. Corporate practice of medicine can restrict the ability of hospitals to contract with physicians. They may also implicate fee-splitting provisions with non-provisions.

What happens if there is a violation of corporate practice of medicine laws?

The physician can sue to have their agreement with the hospital declared unenforceable.

the physician may also be the subject to ethical complaints because physicians cannot let non-physicians improperly influence the profession.

How does EMTALA create provider liability?

EMTALA creates an obligation to stabilize or transfer and antidumping provisions

How does tax-exempt status create provider liability?

Tax-exempt status (for hospitals) only applies when they are operating for a charitable purpose. A hospital that has profits go to shareholders or private individuals loses its tax-exempt status.

How do fraud and abuse laws create provider liability?

Laws like Stark and Anti-Kickback Statute create limits on how a provider can contract with others and handle referrals. Failure to comply means that the provider will be subject to penalties.

How does the American Disabilities Act create provider liability?

The ADA creates requirements for how providers can deal with their employees and the public. A provider may be considered a public accommodation and may have to make their facility accessible. Providers also have to give reasonable accommodations to their employees.

A provider that is considered a private entity is required to make reasonable modifications to their business and to take necessary steps to communicate with individuals with disabilities.

How do labor laws create provider liability?

Labor laws include minimum wage and overtime standards. They also include workplace safety requirements, Medical leave requirements, and non-discrimination requirements.

Health Care Quality Improvement Act

Who makes up the medical staff of a facility?

The physicians who are authorized to treat patients.

What is the relationship between the medical staff and the hospital?

it can depend on the physician and their specialty. Some physicians, like anesthesiologists, are employees.

There may not be a direct financial relationship between the physician and the hospital, even though the physician is on the medical staff.

The organization of the medical staff depends on what?

The organization of the medical staff depends on their bylaws, which should cover the structure of the staff, any departments and officers, the criteria for staff appointments, and procedures for reviewing appointments.

What is the purpose of the medical staff?

It monitors the quality of medical care provided and reviews the ethical and professional conduct of its members.

How do Joint Commission or HCQIA requirements affect the credentialing process?

a. the Joint Commission requires that applicants be asked to provde information on previously successful or pending licensure or registration and loss of medical staff membership or clinical privileges.

b. the HCQIA requires hospitals to request information from HHS and report information to HHS regarding adverse professional review actions.

How does DUE Process and Equal Protection affect the credentialing process?

Physicians have a property interest in hospital privileges, therefore Due Process is triggered for certain hospitals. The Fifth and Fourteenth Amendments only apply to governments, but hospitals may have to comply with these amendments because they are:

i. operated by the government

ii. a state actor

iii. required to comply to receive government benefits or services

What is procedural due process?

the obligation not to interfere with someone’s rights without a compelling interest.

When a review action covered by the HCQIA? the review action must be:

a. in reasonable belief that the action was in the furtherance of quality health care;

b. after a reasonable effort to obtain the facts of the matter

c. after adequate notice and hearing procedures

d. in reasonable belief that the action was warranted based on the requirements above.

Who is protected from liability by the HCQIA? the HCQIA protects:

a. the professional review body

b. any person acting as a member or staff of the professional review body

c. any person under a contract with the body

d. any person who assisted the body

e. as long as they did not submit any information that they knew to be false and as long as the action was related to the physician’s competence or professional conduct, the actions were not taken for economic reasons. The HCQIA also does not prevent liability on antidiscrimination grounds

How does Antitrust affect the credentialing process?

Prohibitions on doctors of osteopathy on practitioners who have not graduated from AMA-approved medical school or who have not completed AMA-approved residencies are usually rejected on antitrust grounds unless those criteria can be linked to professional competency.

Is the inability to work with others a valid reason to deny credentials or terminate credentials?

yes, if there is clear evidence that the physicians has been disruptive, the disruptive behavior was not related to legitimate concerns for patient welfare and the physician’s behavior impaired the hospital’s ability to care for patients.

What does a notice need to state under HCQIA?

A professional review action has been proposed to be taken and the reasons for the action.

the professional has the right to request a hearing and any time limits that may apply.

A summary of the professional’s rights in the hearing

Antidiscrimination

Civil Rights Act of 1964

Prohibits discrimination on the basis of race, color, or national origin by any program receiving federal assistance.

ACA Section 1557

Prohibits discrimination on the basis of race, color, or national origin, age, disability, or sex in covered health programs or activities

Pregnancy Discrimination Act of 1978 amended what?

Pregnancy Discrimination Act of 1978 amended the Civil Rights Act to include discrimination on the basis of pregnancy as a form of sec discrimination.

Americans with Disabilities Act

a. Prohibits discrimination on the basis of disability, including in employment, public accommodation, accessibility, and communication.

b. Disability defined

i. having physical or mental impairment that substantially limits one or more major life activities;

ii. having a history or record of such impairment;

iii. being perceived by others as having such an impairment.

c. Olmstead v. LC

i individuals with disabilities must be provided treatment in the community if such treatment is appropriate for them, not opposed by the individual, and can be provided with reasonable accommodation.