Chapter 26

The basic principle of the law

was defined in Schloendorf v. Society of New York Hospital in 1914

The Law

Every human being of adult years and sound mind has a right to determine what shall be done with his or her own body, and a surgeon who performs an operation without his or her patient’s consent commits an assault, for which he or she is liable in damages.

Six Functions of The Law

- Protects individual autonomy​

- Protects the patient’s status as a human being​

- Avoids frauds and duress​

- Encourages health care practitioners to consider their decisions carefully​

- Fosters rational decision making by the patient​

- Involves the public in medicine

Medicine and Law

- look at a situation from a different perspective​

- both aspects are necessary to ensure the patient receives the best possible care

- The interpretation of the facts is sometimes at odds from the two differing aspects

Medical Side of The Law

- is designed to see that a patient's physical needs are met through diagnosis and treatment

Legal Side of The Law

- control the abuse of patients​

- make sure the patient's care is being met according to recognized standards of practice​

- ensure patients are compensated for injuries received at the hands of negligent health care practitioners

Types of Laws Surrounding Healthcare

- Constitution of the United States​

- Law enacted by legislative bodies or administrative agencies​

- Case law​

- Contract law

Constitution

Protects the individual rights of citizens of the United States

Legislative and Administrative

- Laws enacted at the local, state and federal levels​

Example of a Legislative and Administrative Law

a state adopts a statute that defines who may operate a machine that produces radiation. They then delegate an administrative agency, such as the board of health, to establish regulations and oversee compliance with the regulations

Case Law

- Derived from the Common Law of England​

- Decided on a case-by case basis by either a judge or jury​

- The decisions in those cases set a precedent for future cases​

- determines if there is liability for a healthcare provider who has been sued for negligence

Contract

is a legally enforceable agreement between parties creating mutual obligations

Causes of actions

Tort

Types of Torts

- Assault​

- Battery​

- False imprisonment​

- Defamation​

---Slander​

---Libel ​

- Fraud

Tort

- A patient's claim that he or she has been wronged or has sustained injury, other than breach of contract, and for which cause may exist for an action to receive compensation for damages

- For the patient to have a claim, some breach of duty must have occurred on the part of the healthcare practitioner

- The patient (or representative) becomes the plaintiff in the action

Assault

- may arise when a patient believes he or she has been threatened in such a way that reason to fear or to expect immediate bodily harm exists​

Assault Example

- a technologist threatens to repeat a painful exam if the patient does not hold still

Battery

- An unlawful touching may constitute ________ if the patient thinks the healthcare provider has touched him or her in an offensive way

Battery Example

a procedure performed on the wrong patient

False Imprisonment

- A patient is restrained or believes he or she is being restrained against his or her will​

- Often occurs with patients who are unable to cooperate; senile, unconscious, psychiatric patient, inebriated, etc.

- Restraints would normally be used for this patient population to ensure the patient's safety, but can be construed as this, because the patient cannot give consent

- To obtain consent, patients or their representatives must be informed of the reasons for restraint and the risks involved

Defamation

- Information that is released to unauthorized individuals and disseminated in a way that the patient was subject to ridicule, scorn or contempt which resulted in injury

- Injury could be loss of business, home or job

Healthcare providers

____________ have an obligation to maintain patient confidentiality and to keep all protected health information in confidence

Confidential Information

should only be shared with persons who need to know and who have an authorized health care relationship with the patient, or whom the patient has authorized to receive information

Two Types of Defamation

- slander

- libel

Slander Defamation

involves the spoken word.

Libel Defamation

involves written or published comments or pictures

Fraud

is a willful and intentional misrepresentation of facts that may cause harm to an individual or loss of an individual right or property

Fraud Example

- a pathologic condition is missed by the radiologist and the radiologist or hospital attempt to cover up the error.

- Another example is changing patient's medical records to cover up for a nurse who gave the patient the wrong drug

Privacy of Records and Confidentiality

- are two principles articulated in the American Hospital Association's Patient Care Partnership

Patient Records

- belong to the hospital or health care facility, the information contained in the records belongs to the patient and may not be distributed without the patient's consent

- should be secured with access given only to persons who need to know or to whom the patient has given permission for access

HIPPA (Health Insurance Portability and Accountability Act)

calls for:​

- Standardization of electronic data interchange​

- Protection of confidentiality​

- Security of individually identifiable health information

- Patients must authorize release of health information and a knowing misuse of health information may result in fines and/or imprisonment

Negligence

- is a failure to use such care as a reasonably prudent person would use under like or similar circumstances​

- Substitute "the reasonable prudent health care professional"

For a patient, or plaintiff, to recover damages for injuries sustained because of negligence, four elements must be proved:

- A duty to the patient by the health care practitioner, otherwise known as the "standard of care"​

- Breach of this duty by an act or by failing to perform some act (deviation of the standard of care)​

- A compensable injury​

- A causal relationship between the injury and the breach of duty

Example of Negligence

- Patient arrives in the radiology department on a stretcher​

- After the exam, the patient is transferred back to the stretcher, but the side rails are not raised​

- The patient falls and fractures a hip​

- The fractured hip is a direct result of the fall, for which the technologist was at fault for not raising the rails

Standard of Care

- is constantly changing because of the dynamic nature of technology in medical imaging

- is defined as the degree of skill (proficiency), knowledge, and care ordinarily possessed and employed by members in good standing within the profession

Standard of Care Establishment

- is influenced by federal and state regulations, position descriptions, curriculum guides, institutional policies and procedures, professional customs, standards of practice, and rules of ethics

Practice Standards for Medical Imaging and Radiation Therapy

- were developed by members of the American Society of Radiologic Technologists (ASRT) to define the expectations of the profession for those who practice

- outline the practice for medical imaging and radiation therapy professional performance and include the scope of practice for each area such as radiography, radiation therapy, radiologist assistants, computed technology, nuclear medicine, and mammography​

Review

A _________ of actual care compared to the guidance in the standards will be used to determine whether an individual is compliant with acceptable professional practice

- Expert witnesses, either educators or long-term practitioners are usually called upon to render an opinion or testify

legal theories

Besides liability, attorneys may use other_________ to switch the burden of proof to the plaintiff or bring other individuals into the litigation

Other Legal Theories

- Res ipsa loquitur​

- Respondeat superior​

- Corporate liability

Res Ipsa Loquitur

- translates to "the thing speaks for itself"

- Refers to a patient is injured through no fault of his or her own while under complete control of another

Res Ipsa Loquitur Examples

- patient is anesthetized for surgical procedure and sustains an injury that would not normally occur in the course of the operation. ​

- patient is burned when his/her leg is propped on the x-ray tube when performing a tunnel view of the knee

Respondeat Superior

- translates to "the master speaks for the servant"​

- In cases of medical negligence, the established theory asserts that the physician or health care facility is responsible for the negligent act of its employees​

- Critics claim that this action is a "deep pocket approach"

Corporate Liability

- requires the hospital or health care entity to be responsible for the quality of care delivered to patients in their facilities

Corporate Liability

- extends to employee; not only to actions of actual employees, but to independent contractors, such as physicians who practice within the facility

Corporate Liability is Expanded to Include

- Duty of reasonable care in the selection and retention of employees and medical staff​

- Duty of reasonable care in the maintenance and use of equipment​

- Availability of equipment and services

Consent

Patients rely on the healthcare professionals to give them all the information necessary to make an informed decision regarding ______ to care

Two Types of Consent

- implied

- informed

Implied Consent

- results when an individual presents for care​

- It does not require a signed statement of consent but allows the patient to ask questions or refuse the procedure​

- Invasive or complex procedures that include a certain element of risk require a more extensive consent procedure

Informed Consent

- is required when a patient is subjected to any type of invasive procedure.

- must be in the patients language where they can understand it

- Example, interventional vascular examinations, CT guided biopsy, myelogram​

Consent Form Includes

- Techniques used to complete the examination​

- Possible risks associated with the procedure​

- Benefits of the procedure​

- Alternative procedures

A Consent Form Should Include

- Authorization clause to permit physician or healthcare professional to perform the procedure​

- A disclosure clause to explain the procedure, its risks and benefits, and possible alternatives​

- An anesthesia clause, if required​

- A no-guarantee clause for therapeutic procedures​

- A tissue-disposal clause if removal of tissue may be necessary​

- A patient understanding clause, which states the information has been reviewed with the patient​

- A signature clause for the signature of patient (or representative), as well as that of a witness (a disinterested third party)

revoke the consent

A patient can consent to a procedure, and then _____________, the procedure must then be stopped at a point that will not cause injury to the patient

Example of a Patient Revoking Consent

- patient chooses to terminate a barium enema before completion due to extreme discomfort