HSCI 3200 - Exam 2

tort

Civil wrong for which law will provide remedy in form of lawsuit to recover damages

objectives: preservation, culpability, deterrence, compensation

Liability

Legal obligation or responsibility by a party in a lawsuit

Torfeasor

Person who commits a tort

Negligent torts

Unintentional commission or omission of an act that reasonably prudent person would or would not do under given circumstances

Intentional torts

Assault, battery, false imprisonment, invasion of privacy, infliction of mental distress, medical abandonment, breach of confidentiality, defamation

Strict liability

When activity is so dangerous to others that public policy demands absolute responsibility of part of wrongdoer

Duty of Care

Obligation to conform to recognized standard of conduct or behavior

If person fails to act reasonably, it is understood that harm may result

Standard of Care

Behavior that a reasonably prudent professional would have rendered in same or similar circumstances

establisted by;

- state laws

- professional associations

- accrediting bodies

Negligence

Unintentional conduct involving failure to act in a way that a reasonably prudent person would act under the same circumstances, thus causing harm or injury to another, careless conduct outside acceptable standards of care

Nonfeasance

Failure to perform an act that a person is under a duty to do and a person of ordinary prudence would have done in same or similar circumstances

Misfeasance

Improper performance of an act that a person might lawfully do, or active misconduct that causes injury to another

Malfeasance

Performance of a wrongful act that may be unlawful

Breach of Duty

Plaintiff must prove defendant deviated from standard of care

evidence might be: standards, written materials, regulations, etc

4 elements of negligence

duty of care, breach of duty, injury, causation

Ordinary Negligence

Failure to exercise ordinary care is "the failure to exercise such care as . . . mankind ordinarily exercises under the same or similar circumstances."

Gross Negligence

Very great or excessive negligence that implies an extreme departure from the ordinary standard of care and shows a reckless disregard for the rights of others

Proximal Cause

Event that is sufficiently related to a legally recognizable injury so as to be held the cause of that injury Includes foreseeability

cause in fact (actual causation)

Determined by the "but-for" test: but for the action, the result would not have happened

Res ipsa loquitor

the thing speaks for itself:

Can infer negligence from nature of accident or injury in the absence of direct evidence on how the defendant behaved

Contributory Negligence

Bars a plaintiff from recovering damages from the defendant if the defendant is able to prove that plaintiff's conduct contributed in part to injury that plaintiff suffered

Comparative Negligence

Plaintiff's recovery is reduced based on his/her percentage of negligence that contributed to injury

Pure Comparative negligence

recovery based on actual percentages

Partial comparative negligence

recovery permitted only if plaintiff is not more negligent than the defendant (plaintiff can't be >50% negligent)

Assumption of risk

bars a plaintiff from recovering on his or her negligence claim if defendant proves that the plaintiff: Had actual knowledge of a danger, voluntariliy exposed self to risks

Rescue Doctrine

Unless the rescuer's own conduct in attempting the rescue is wanton, then the rescuer may recover from the negligent defendant

"Good Samaritan Law"

relieves a person of liability if, without prior negligence on his part, that person is confronted with a sudden emergency and acts as an ordinarily prudent person would act under the circumstances

Unavoidable Accident

occurrence that could not have been foreseen or anticipated in exercise of ordinary care, and which results without fault or negligence of either defendant or plaintiff

Act of God

Any disaster that is not caused by humans (such as earthquakes, unprecedented floods or like), and may not be a reasonably foreseeable event.

If the proper care and diligence on the part of a tortfeasor (rescuer) would have avoided the act, the act is not excusable

Charitable Immunity

Charitable institution shielded from liability to ensure that money is used for charity work(No longer applies to hospitals, now seen as any other business)

Government Immunity

Plaintiff precluded from suing without notice to and consent from government (w restrictions and limitations)

Modified to great extent by the "Federal Tort Claims Act" in 1946

Corporate negligence (primary liability)

Darling v. Charleston Memorial Community Hospital (Illinois Supreme Court 1965) set precedence

- hospital deviates from standard of care

Respondeat superior

(vicarious liability): Hospital is liable to patients for torts of its employees and contractors

Strict Liability

a person is responsible for the damage and loss caused by his or her acts and omissions regardless of fault

statute of limitations

enactments that place time limits on certain claims

- Allows claims to be resolved while evidence is available and fresh

- period begins to run when act or omission is complete

- Injury reasonably not discovered

- Injured individual dies: executor sues

- Removal of individual's disability

- Tortfeasor concealed wrongdoing

- Minor reaches age of majority

when can period of limitation be suspended?

Statute of repose

Maximum or absolute limitation placed on a suit can be brought as related to malpractice tort reform

Contract law

Civil law relating to agreements between parties, most often in the context of business or commercial relationships

Malpractice Insurance

Physicians and other healthcare providers must retain medical malpractice insurance to protect themselves from claims for medical negligence or other tortious injury arising out of care provided to patients.

tort reform

Joint and several liability allow each defendant in a legal action to be held responsible for the entire amount of damages that a plaintiff is awarded, regardless of defendant's degree of fault

Collateral Source Payments

Payments a plaintiff in a tort case receives from a source other than the defendant(s)

Noneconomic Damages

Developed as a way to compensate an injured plaintiff for losses that do not have a cash value, such as pain and suffering or emotional distress.

Affidavit of Merit

Deters excessive and/or frivolous litigation, some jurisdictions require that an affidavit of merit accompany a complaint.

Contingency Fees

Many states have taken reform measures to curb abuse of contingency fee arrangements by enacting statutes to limit contingent fees in medical liability cases

Structured Settlement

Arrangement for a claim is paid in installments rather than in one lump-sum settlement

No-fault Insurance

Describes any type of insurance contract under which insureds are indemnified for losses by their own insurance company, regardless of fault in the incident generating losses.

Intention torts includes the following elements

Act must be committed intentionally, and wrongdoer must realize to a substantial certainly that harm would result; willful act that violates another's interest

ex: assault, false imprisonment, fraud, invasion of privacy

Assault

Deliberate threat coupled with apparent present ability to do physical harm to another (No actual contact or damage is necessary)

Battery

Intentional touching of another person in socially impermissible manner without person's consent

technical battery

occurs when a medical practitioner exceeds the consent given by the patient unless emergency situation

(most often occurs when something else is removed other than actual surgery site)

slander (defamation of character)

injuring a person's reputation through oral expressions/gestures (must be said to a third party)

- must be a LIVING PERSON

libel (defamation of character)

injuring a person's reputation through writing, print, pictures, or signs (must be said to a third party)

two defenses to defamation of character

truth (proven) and privilege (ex. peer review committee)

fraud

Willful and intentional misrepresentation that could cause harm or loss to person or property

elements of fraud

- untrue statement known to be untrue

- justifiable reliance by victim on truth of it

- damages as a result of that reliance

(No. 1 cause of denying billing claims)

False Imprisonment

Unlawful restraint or confinement of another person against that person's will or legal authority (does not need to be in prison)

elements of false imprisonment

- Be aware of confinement

- Have no reasonable means of escape

a person is mentally ill or a danger to themselves

when is confinement justifiable

Omnibus Budget Reconciliation Act of 1987

which act restricts use of restraints to be applied as last resort rather than first option?

restraints as false imprisonment

patients have a right to be free from physical restraints or drugs meant to discipline, including medications unless its a last resort

Invasion of Privacy

Dissemination of information about another person's private, personal matters

elements of invasion of privacy

- Unwarranted appropriation or exploitation of personality

- Publication of private affairs, which will cause embarrassment

- Wrongful intrusion into private concerns

infliction of mental distress

Characterized by conduct so outrageous that it goes beyond the bounds tolerated by a decent society

- Includes mental suffering resulting from painful emotions such as grief, public humiliation, despair, shame and wounded pride

(can be bc of misdiagnosis)

elements of infliction of mental distress

Defendant's conduct was intentional, outrageous, or reckless, and conduct caused emotional distress

criminal aspects of healthcare

Crime is any social harm defined and made punishable by law; either misdemeanor or felony

healthcare fraud, patient abuse, tampering with drugs, falsification of records, criminal negligence, manslaughter, murder, rape and sexual assault, and theft

which aspects of healthcare have zero-tolerance policies?

healthcare fraud

Unlawful act, generally deception for personal gain

- Encompasses array of irregularities and illegal acts

the fbi

who investigates healthcare fraud?

HIPAA

who provides for criminal and civil enforcement tools and funding dedicated to fighting healthcare fraud?

Upcoding

Billing for higher level of service than what was actually rendered and receiving higher rate

Unbundling

Submitting separate bills for each component of procedure to get higher reimbursement

False Claims Act (FCA USC 3729)

- intent is irrelevant

- To knowingly submit false or fraudulent claim to government in order to get paid

- for orgs: 2 times erroneous payments plus mandatory penalties of $500,000

- for individuals: 2 times erroneous payments plus $250,000

Federal Anti-Kickback Statute 42 USC 1320a-7b

Establishes criminal penalties for anyone who knowingly solicits or pays anything of value as an inducement for referring an individual to a person for the furnishing or arranging for furnishing of any item or service payable under Medicare and Medicaid

Office of Inspector General (OIG)

who investigates violations for services not provided, visits not authorized by physician or made?

safe harbors

Activities that are not subject to prosecution and protect the organization from civil or criminal penalties

upcoding/unbundling, billing for not rendered services, performing medically unnecessary services

what are the most common types of healthcare fraud?

waste

- Incurring unnecessary costs as a result of deficient management, practices, or controls

- Overutilization of services that result in unnecessary costs to federal healthcare programs

abuse

Inconsistent handling of sound, fiscal, business or medical practices resulting in Unnecessary costs to program, Improper payments, etc

common healthcare fraud

Misrepresentation of the type or level of service provided, Failure to document medical necessity appropriately, Misrepresentation of the individual rendering service, etc

corporate compliance

Adherence to federal laws and regulations passed by official regulating bodies as well as general principles of ethical conduct (Society of Corp Compliance and Ethics), MANDATORY for participation in federal healthcare programs

- prevent unjust financial enrichment

government accountability office

designates medicare as a high risk program, engages in efforts to combat fraud and abuse and increase medicare program integrity funding

compliance officer

Responsible for overseeing processes that promote an organization's ethical business practices and its conformity to federal, state, and private payer program requirements

an organization's corporate code of conduct

Serves as the organization's constitution, detailing fundamental principles, values, and framework for action, Should include expectations for ethical requirements and compliance of governing body members, officers, managers, employees, physicians, and where, appropriate, contractors and other agents

disciplinary actions can include

Oral/written warnings, Written reprimands, Probation, Demotion, etc

covered by corporate compliance

- False Claims Act: Fraud, waste, and abuse

- Anti-kickback Statute: Incentives and/or bribes

- Stark Law: Physician self-referral

- Civil Monetary Penalties: Settlement agreements

- HIPAA/HITECH: PHI privacy and security

- EEOC: Employment discrimination

- Harassment and Retaliation

- etc

Deficit Reduction Act of 2005

Transformed compliance programs from voluntary to mandatory

- Contains employee education about FCR provision, which requires any entity that annually receives or makes at least $5 million in Medicaid payments to establish written policies

false claims act

Primary litigation tool for combating fraud

- Criminal and civil provisions

- Must establish that the claim was false or fraudulent

- Furnishing inaccurate or misleading information

- FCA has been extended to cover quality of care cases

what constitutes a false claim?

The Knowing Standard

Falsity alone is not enough to impose FCA liability, Must prove that provider knowingly submitted false claim

Fraud Enforcement and Recovery Act of 2009

revisions to FCA, expanded potential liability and penalties apply to any person who knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval, regardless of to whom the claim was made

Federal Anti-Kickback Statute

Violation constitutes a felony punishable by a fine of up to $25,000, imprisonment for up to five years, or both,

- Establishes criminal penalties for individuals and entities that knowingly and willfully offer, pay, solicit, or receive remuneration in order to induce business for which payment may be made under any federal healthcare program

safe harbors include

Space and equipment rental

- Sale of MD practice by one practitioner or another

- Bona fide employment arrangements

- etc

Civil Monetary Penalties Law

a civil remedy that allows the Secretary and Inspector General of HHS to impose CMPs, assessment, and program exclusions to individuals and entities whose wrongdoing caused injury to HHS programs or their beneficiaries

- amount doesnt exceed $10,000 or 3x fines

stark law

Prohibits physicians from ordering designated health services for Medicare (and to some extent Medicaid) patients from entities with which the physician, or an immediate family member has a financial relationship

- (self referral statute)

stark law exclusions

- Services that are reimbursed by Medicare as part of a composite rate

- Certain referral relationships are permitted, such as a request by a pathologist for clinical diagnostic laboratory tests

- etc

stark law penalties

- denial of payment for services

- civil money penalties up to $15,000 per referral

- physicians can be fined $100,000 per referral

- exclusion from medicare/medicaid programs

- etc

Patient Protection and Affordable Care Act

Known as the health reform bill

- Further amends the FCA by allowing private individuals more successful in filing false claims lawsuits

Violating fraud and abuse laws may result in:

Nonpayment of claims

- Civil Monetary Penalties (CMP)

- Exclusion from all Federal health care programs

- Significant deterrent: not economically feasible to forgo service to Medicare beneficiaries

DOJ, HHS, OIG, FBI

who enforces these fraud and abuse laws?

Centers for Medicare and Medicaid Services (CMS)

- Fraud Prevention System (FPS)

- Comprehensive Error Rate Testing (CERT) Program

- Program Integrity Contractors

Medicare Fraud Strike Force

Multi-agency team designed to combat Medicare fraud through use of Medicare data analysis and focus on community policing