Medical Law- Patient Care Unit 7

what year was Schloendorf v. Society of New York Hospital

1914

quote from schloendorf v. society of new york hospital

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

law definition

• the principles and regulations established in a community by some authority and applicable to its people, whether in the form of legislation or of sutom and policies recognized and enforced by judicial decision

law vs. medicine

• both are completely necessary

• both look at each situation from a different perspective

sources of law

• constitution

• statutes and regulations

• case law

the constitution of the US is

• the supreme law of the land

• defines individual rights

• each state has a constitution as well

written to separate powers of the 3 branches of the government

1. executive

2. legislative

3. judiciary

judiciary has to do with

a system of courts

legislative has to do with

congress

executive has to do with

presidency

statutes and regulations are enacted by

legislative bodies or administrative agencies

statutes and regulations are written at

• local, state, and federal levels

  • runs the gamut from who will drive cars to how citizens are taxed

may adopt a statute that defines…

• radiation machine operators

• restricitons on who may practice

• how ionizing radiaiton equipment is registered

ways statutes and regulations may change from time to time at the discretion of legislature

• scopes of practice may change

• legislators may be persuaded to make changes if the profession sees that the regulations/statutes are too loose or restrictive

case law

• decided on a case-by-case basis by either a judge or jury

• may be precendent setting for future cases with similar patterns

case law determines

• if there is a liability for the healthcare practitioner who has been sued for medical negligence, malpractice or other cause of action

two types of law we will discuss…

• criminal law

• tort law

what is criminal law

the law of crimes and their punishments

types of criminal law

• felony (murder, robbery, rape)

• misdeamnor

a felony is

• serious crime with punishment of imprisonment for greater than 1 year or death

a misdemeanor is

• less serious crime with punishment of fine or imprisonment for less than 1 year

what is tort law

• patients claim that he/she has been wronged or has sustained injury

• violation of a duty imposed by general law on all persons involved in a transaction or situation

• paintiff (patient) vs. defendant (person or organizaiton)

plaintiff complaint

the care receivded has been less than optimal or threatening in any way

plaintiff complaints that are cased on concerns of

• assault

• battery

• false imprisonment

• defamation

• negligent care

assault definition

• any willful attempt or threat to inflict injury on the person of another, when coupled with the apparent present ability to do so, and give the victim reason to fear or expect immediate bodily harm

characteristics of assault

• no actual contact is necessary

• law protects patients who are afraid of harmful contact

• key issue is CONSENT needed to treat a patient

• without consent, you are quilty of assault

battery definition is

• any unlawful touching of another that is without justification or excuse

characteristics of battery

• can cause injury or be offensive

• battery always includes assault

• having a physician’s prder does not prevent battery

patients can withdraw consent when?

• at any time!

• PATIENT CONSENT IS THE KEY!

false imprisonment

• conscious restrain of the freedom of a person without proper authorization, privilege, or consent

issue arises most often with patients who are unable to cooperate…

• inebriated

• senile

• pediatric

AMA

patient may insist upon leaving the hospital against medical advice

key items are

• communication

• documentation

legal criteria for restraints

• if patient is iincompetent or requires restraints, the law allows providers to touch patients without consent within certain parameters

restraints are needed to protect

• patient

• health care workers

• property of others

rules with patients in restraints

• restraint used is least intrusive method possible

• regular reassessment of restraint occurs

• restraint is discontinued as soon as practicable

slander

oral defamation

libel

written defamation

defamation is

• holding up a person to ridicule, scorn or contempt in a respectable and considerable part of the community

  • the uttering or publishing of an unprivileged false statemetn that hurts another’s reputation

negligence

• failire to use such care as a reasonably prudent person would use under like or similar circumstances

• if their medical negligence cuases their patient to suffer an injury, it becomes medical malpractice

how are the boundaries of negligence defined?

• practice standards

• code of ethics

• professional position statements

• standards of care of the profession

• position description

• educational curriculum

• patient “Bill of Rights”

criteria for negligence claim

1. a duty to the patient by the healthcare practitioner

2. breach of this duty by an act or by failing to perform some act

   • deviation from the standard of care

3. compensable injury

4. a casual relationship between the injury and the breach of duty

RTs follow:

• ASRT

  • practice standards for medicla imaging and radiation therapy

• ARRT

  • american registry of rediologic technologists

ARRT

• standards of ethics

  • code of ethics

  • rules of ethics

    • promote the protection, safety, and comfort of patients

beneficience

• most professional codes of ethics are based primarily on this principle

  • encourage practitioners to engage in actions that ultimately benefit their patients

failure to follow appropriate standard of care will lead to:

medical neglience

medical negligence

• estimated 10% of claims are somehow related to diagnostic imaging

  • improper diagnosis

  • injuries to patients sustained during diagnostic imaging

you also must be aware of ________ to follow the standard of care

institutional policies

institutional policies:

• describes how employees are to perform their duties

• set the standard for the institution

• must be congruent with state and federal laws

• RH intranet

code of ethics ARRT #9

• RTs resoects confidences entrusted in the course of professional practice

• respects the patient’s right to privacy

• reveals confidential info only as required by law or to protect the welfare of the individual community

safe haven- newborn abandonment

• the practice of abandoning offspring outside of legal adoption

causes of newborn abandonment

• social

• cultural

• political

• mental illness

“requirements” for newborn abandonment

• infants up to 28 days of age

• does not apply to victims of child abuse

procedure for receiving a child at a Safe Haven hospital

• do not question the parent or attempt to find out his/her name

• take the child to the ED immediately

  • tell staff that baby was left for safe haven program

• do not contact media about the baby

  • incident must remain private and confidential

Res ipsa loquitur means

“the thing speaks for itself”

what is Res ipsa loquitur

• situation in which a particular injury could not have occurred in the absence of negligence

  • no fault of the patient

  • care provider was in complete control

respondeat superior

• “the master speaks for the servant”

  • physician, supervisor, or health care faciltity may be liable in certain cases for the wrongful acts of employees or subordinates

coporate liability

• facility responsible for employees and contractors’ quality of care delivered to patients in their facilities

• requires the health care provider to be responsible for the quality of care provided

what is the leading cause of lawsuits?

poor client relationships

safeguarding your practice

• follow standards of care

• document!!

• follow through on assessments

• follow institutional policy

• report findings to appropriate staff AND document

• develop rapport with patients- communicate

• keep up with changes in law

• know current issues in literature

• avoid illegal use of drugs/alcohol

• carry malpractice insurance/liability insurance

legal responsibilities of students

• be responsible for your own actions

• held to SAME standard of skill and competence as a registered professional

  • complete preparation prior to clinical experience

• ask for help if unsure

• comply with policies

• perform procedures as taught

patient expectations during a hospital stay may include:

• high quality care

• skills

• compassion

• respect

American Hospital Association (AHA), Patient Care Partnership (patient’s bill of rights)

• designed to help patients understand the expectations, rights, and responsibilities regarding their healthcare

  • describes responsibilities of you as a healthcare provider

  • document given to patients whenever they are hospitalized

involvement in your care… autonomy

• refers to a person’s independence

• self determination

• values client decision making

• patients are in charge of their own medical decisions

• agreement to respect the individual’s right to decide their course of action

patients have the right to…

• REFUSE treatment even if the refusal may have what would be considered negative outcomes by the healthcare professionals

responsibilities of the patient

• providing correct health info

• providing correct insurance info

• specific spiritual beliefs

• making available any living will or advance directive

advance directive has to do with

• predetermined choice which informs others of the patient’s wishes should he/she become incompetent

advance directives is a

• written, legal instructions regarding your preferences for medical care if you are unable to make decisions for yourself

• guide choices for doctors and caregivers if you’re terminally ill, seriously injured, in a coma, in the late stages of demetia or near the end of life

living will

• a written, legal document that spells out medical treatments you would and would not want to be used to keep you alive, as well as your preferences for other medical decisions, such as pain management or organ donation

health care proxy

• type of advance directive in which you name a person to make decisions for oyu when you are unable to do so

when are you asked if you have a living will or advance directive?

during registration

a DNR is for what?

• do not resuscitate orders

• do not intubate orders

a patient doesn’t need to have an advance directive or living will to have for what?

• do not resuscitate (DNR) and do not intubate (DNI) orders

how do you establish DNR or DNI orders

• tell doctor about preferences

• the physician will write orders and put them in the medical record

it is a good idea to do what everytime a patient is admitted to a new hospital or health care facility?

to establish DNR or DNI orders even if a patient has a living will that includes their preferences regarding resuscitation and intubation

lawsuits have occurred for failure to follow DNR/AND orders

• battery

• negligent infliction of pain and suffering

• “wrongful life”

protection of your privacy and access to information…

• protected by federal and state laws as well as hospital/institutional policies

• HIPAA

• upon entry to the healthcare setting the patient should be informed of the notice of privacy practice that will outline the way information is used, disclosed, and safeguarded

  • informs the patient how they may obtain a copyh of the information regarding their care

confidentiality

• know HIPAA

• share information ONLY with healthcare providers who have demonstrated a “need to know” the info that you are releasing

• info is shared ONLY for healthcare providers for the purpose of medical treatment only

• patient health records belong to hospital, but the info contained in the records belong to the patient and cannot be distributed without patient’s consent

breach of confidentiality

• extends to verbal, written, and computer communication, as well as reproduction of records and employee conduct

  • compensation can be awarded for breaches of this confidence

  • the code of federal regulation and many state laws provide a high level of confidentiality

torts regarding confidentiality

*** the healthcare worker has a clear responsibility to maintain confidentiality

torts regarding confidentiality unless disclosure is mandated by:

• special circumstances surrounding HIV and AIDS

• duty to warn third parties

• patient consent

• statute

• law enforcement purposes

  • (pursuit to process, identification/location, victim, descendent, crime on premises, reporting of crime)

disclosures: not requiring patient permission

• to the individual

• for treatment purposes to other health care providers

• for payment services

• for health care operations, including quality assurance information

• for appointment reminders, treatment alternatives, and health-related benefits

patients have the right to…

• inspect and obtain a copy of records

• ask for the protected health informaiton to be amended if the patient believes the information to be inaccurate

• ask what disclosures of protected health information disclosure

• request the method of communication

• a paper copy of the institution’s privacy notice

patient authorization

patients may explicitly consent to the release of medical informaiton in their records

patient authorization release form must be in writing and contain the following:

• whom the info is being released

• the patients name, address, and date of birth

• the extent of the info being released

• the date

• signature of the patient or legal representative

HIPAA enforecment

• monetary penalties

• imprisonment

involvment of care… decision making from the patient based on complete info

• treatment choices

• benefits and risks

• is treatment experimental or part of research study?

• both short-term and long-term results

• financial consequences

• follow-up care instructions upon discharge

types of consent

• implied

• informed

• oral

implied consent is also known as

simple consent

implied (simple) consent

• person’s agreement to allow something to happen which is not expressly given but rather inferred from a person’s action or inactions

• non-verbal behavior indicates can mean agreement/disagreement

• many radiology proceduures fall under this category

• RT has responsibility to explain and teach thoroughly PRIOR to the procedure

implied consent- minors

• consent is given through signing of “consent for treatment” when entering the healthcare environment (include inpatient, outpatient, ED patient)

  • best practice is to still have a discussion with the parent/guardian and obtain their consent

informed consent is also known as

expressed consent

informed (expressed) consent is

a person’s agreement to allow something to happen (such as surgery) that is based on a full disclosure of the facts to make the decision intelligently- that is, knowledge of risks involved, alternatives, benefits, and other informaiton needed by a reasonable person to make a decision

• oral or written agreement (used with invasive procedures)

• patient signs a consent form

“I dont’t want that study” means

the patient has withdrawn consent

informed consent is governed by

state law

what is required for hospitalizaition which covers all general forms of treatment

informed consent

what is required for ALL invasive procedures or treatments

additional consent is required

• to have the possibility of harmful consequences in writing

consent revocation

patient has right to refuse treatment or change their mind

being informed includes:

• purpose of proposed treatment

• what patien tcan expect to feel or experience

• intended benefit of proposed treatment

• possible risks or negative outcomes

• advantages and disadvantages of possible alternative treatments (including no treatment)

parental permission

required for all minors (under 18)