Patient Care CH 7

Schloendorf v. Society of New York Hospital
  –1914

“ 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 consent commits assault, for which he is liable in damages.”

Law

The principles and regulations established in a community by some authority and applicable to its people, whether in the form of legislation or of custom 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 United States

Supreme Law of the Land

Written to separate powers of the 3 branches of government.

1.Executive (Presidency)

2.Legislative (Congress)

3.Judiciary (a system of Courts)

Defines individual rights

Each state has a constitution  as well

Statutes and Regulations

•Enacted by legislative bodies or administrative agencies

•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, restrictions on who may practice and how ionizing radiation equipment is registered

•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 a jury

•May be precedent setting for future cases with similar patterns

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

Criminal law

The law of crimes and their punishments

Types of criminal law

•Felony (murder, robbery, rape)

•Misdemeanor

•Felony (murder, robbery, rape)

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

•Misdemeanor

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

Tort law

Patients claim that he/she has been wronged or has sustained injury

Example of tort law

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

•Plaintiff (patient) vs. Defendant (person or organization)

•Plaintiff complaint: the care received has been less than optimal or threatening in any way

•Complaints based on concerns of:

•Assault

•Battery

•False imprisonment

•Defamation

•Negligent care

Assault

Any willful attempt or threat to inflict injury on the person of another, when coupled with the apparent present ability to do so, and any intentional display of force such as would give the victim reason to fear or expect immediate bodily harm

•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 guilty of assault

Battery

Any unlawful touching of another that is without justification or excuse

•Can cause injury or be offensive

•Battery always includes assault

•Having a physician’s order does not prevent battery

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üPatients can withdraw consent at any time

PATIENT CONSENT IS THE KEY!

False Imprisonment

Conscious restraint 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

•Patient may insist upon leaving the hospital against medical advice (AMA)

**Key Items:

üCommunication

üDocumentation

Legal Criteria for Restraints

•If a patient is incompetent or requires restraints, the law allows providers to touch patients without consent within certain parameters

•Restraint needed to protect patient, health care workers or property of others

•Restraint used is least intrusive method possible

•Regular reassessment of restraint occurs

•Restraint is discontinued as soon as practicable

Defamation

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 statement that hurts another’s reputation

•Slander

Oral defamation

•Libel 

Written defamation

Negligence

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

If their medical negligence causes 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 causal relationship between the injury and the

    breach of duty

Standard Of Care

ASRT – Practice Standards

ARRT – Code of Ethics; Rule Ethics; Mission Statement

ASRT

•Practice Standards for Medical Imaging and Radiation Therapy (Appendix A, pp 363-369)

ARRT

American Registry of Radiologic Technologists

•Standards of Ethics: 

•Code of Ethics

•Rules of Ethics

•promote the protection, safety, and comfort of patients

Beneficence

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 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 Institutional Policies to follow the Standard of Care

•Describes how employees are to perform their duties

•Sets the standard for the institution

•Must be congruent with state and federal laws

•RH Intranet

Code of Ethics ARRT #9

“The Radiologic Technologist respects confidences entrusted in the course of professional practice, respects the patient’s right to privacy, and reveals confidential information only as required by law or to protect the welfare of the individual or community.”

Safe Haven

Newborn Abandonment is the practice of abandoning offspring outside of legal adoption. Causes include many social, cultural, and political factors as well as mental illness.

•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

“The thing speaks for itself”

•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 facility may be liable in certain cases for the wrongful acts of employees or subordinates

Corporate 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

Safeguarding Your Practice

•Follow Standards of Care

•Document, document, 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 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

American Hospital Association (AHA)
Patient Care Partnership
(Patient’s Bill of Rights)

Designed to help patients understand the expectations,

rights, and responsibilities regarding their health care

•Describes responsibilities of you as a healthcare provider

•Document given to patients whenever they are hospitalized

Patient Expectations may include:

•High quality care

•Skills

•Compassion

•Respect

Involvement in your care…..Autonomy

•Refers to a person’s independence

•Self determination

•Agreement to respect the individual's right to decide their course of action

•Values client decision making

•Patients are in charge of their own medical decisions

•**Patients have the right to REFUSE treatment even if the refusal may have what would be considered negative outcomes by the health care professionals.

Responsibilities of the Patient

•Providing correct health information

•Providing correct insurance information

•Specific spiritual beliefs

•Making available any living will or advance directive

•Advance Directive

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

Advance Directives

Written, legal instructions regarding your preferences for medical care if you are unable to make decisions for yourself. Advance directives guide choices for doctors and caregivers if you're terminally ill, seriously injured, in a coma, in the late stages of dementia 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 you when you are unable to do so

Do not resuscitate and do not intubate orders

A patient doesn't need to have an advance directive or living will to have do not resuscitate (DNR) and do not intubate (DNI) orders.

To establish DNR or DNI orders, tell doctor about preferences.

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

Even if a patient has a living will that includes their preferences regarding resuscitation and intubation, it is still a good idea to establish DNR or DNI orders each time they are admitted to a new hospital or health care facility.

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 copy of the information regarding their care.

Confidentiality

•Know HIPAA

•Share information (written and electronic) ONLY with healthcare providers who have demonstrated a “Need to know”  the information that you are releasing

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

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

HIPAA •Cell Phones

•Personal phones should not be used to photograph patients or screens

•Texting PHI is prohibited unless using approved, encrypted systems

•Lock screens, use strong passwords, and enable auto‑lock

HIPAA email

•PHI may only be sent through secure, encrypted email systems

•Verify recipient before sending

•Never use personal email accounts for patient information

HIPAA •Social Networking

•Never post patient images, cases, or details

•“De‑identified” posts can still violate HIPAA

•Professional boundaries apply on and off duty

HIPAA •Photography & Imaging

•Taking photos of patients, monitors, or images requires:

•Clinical necessity

•Proper consent

•Secure storage in the medical record

•No personal storage or cloud backups

Breach of Confidentiality

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

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•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

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

HIPAA  Reinforcement of Patient Rights

Patients have the Right To..

•Inspect and obtain a copy of records

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

•Ask what disclosures have been made

•Request restriction 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 information in their records

•Release must be in writing and contain the following:

•Whom the information is being released

•The patients name, address, and date of birth

•The extent of the information being released

•The date

•Signature of the patient or legal representative

HIPAA Enforcement

•Monetary penalties

•Imprisonment

Involvement of Care….
Decision making from the patient based on complete information

•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

Consent

•Implied

•Informed

•Oral

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 procedures fall under this category

•Radiologic Technologist has responsibility to explain and teach thoroughly PRIOR to the procedure

Implied (Simple) Consent-Minors

•Consent is given through signing of “Consent for Treatment” when entering the Healthcare environment (include Inpatient, Outpatient, ED patient)

•“I understand that my healthcare team may be comprised of physicians, physician assistants, nurse practitioners, nurses, technicians, residents, students, other employees, and agents

•

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

Informed (Expressed)Consent

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

•Oral or written agreement  (Used with invasive procedures)

•Patient signs a consent form

Being Informed includes:

•Purpose of proposed treatment

•What patient can 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)

Obtaining Valid Informed Consent Pediatrics/Minors

•Parental permission

•Required for all minors (<18)

•Patient assent

•Used when patient is a minor, but possesses adequate age and developmental level to participate in the decision

•Emancipated or mature minors permitted to provide their own informed consent

Three Criteria for Informed Consent

1. Consent must be given voluntarily

2. Consent must be given by a client or individual with the capacity and competence to understand

3. Client or individual must be given enough information to be ultimate decision maker.

Physician's role

•To provide the information

Witness’s role

•To witness the patient’s signature.

•Do not witness a document if you did not see the patient actually write the signature.

•Although legally, anyone can serve as a witness, students are not permitted to witness consent forms

Patient role

Ask questions to make autonomous decisions

Consent Form Content

•Authorization Clause

•Disclosure Clause

•Anesthesia Clause

•No-Guarantee Clause 

•Tissue Disposal Clause

Consent Form Content

•Patient Understanding Clause

•Signature Clause

Proving Lack of Informed Consent

•Plaintiff must show that material risk existed

•Risk was unknown to patient

•Risk was not disclosed

•Disclosure would lead reasonable patient to refuse exam/seek alternatives

•Patient was injured as result of lack of disclosure

Code of Ethics ARRT #5

The Radiologic Technologist assesses situations; exercises care, discretion, and judgment; assumes responsibility for professional decisions; and acts in the best interest of the patient.

•Emergency Situations

•Patient is unconscious or otherwise unable to consent

•Harm from failure to treat outweighs any harm caused by inherent treatment

•2 exceptions to obtaining informed consent:

•Emergency Situations

•Therapeutic Privilege

•Therapeutic Privilege

•Information withheld because risk of disclosure poses threat to patient

•Threat could lead to further harm

Biomedical Research

Imaging professionals may be employed by

institutions that conduct research on human beings

•Ethical/Legal dilemmas

False Claims Act

• Prohibits submission of false or fraudulent claims to the government

Anti-Kickback Statute

Prohibits asking for or receiving anything of value in exchange for referrals of federal healthcare program business

Ethics in Patient Referrals Act(EPRA) or “Stark Law”

•Limits physician referrals when a physician has a financial relationship with the Hospital or Health System

Conflict of Interest

•Avoid wrongdoing or misconduct and the appearance of wrongdoing or misconduct (dishonesty)

•Make decisions based on what is best for the patient

Orders

Following MD/Nurse Practitioner Orders:

•Must be legible

•Corresponds with patient complaint

•Correct anatomical body part

•Correct side

•Correct reason

•MD Signature (written or                              electronically signed)

What if an order is incorrect or you suspect ordered incorrectly?

Follow proper chain of command

Do not carry out an order that you think is improper/erroneous

**You would be held legally liable if an error was made

Documentation needs to be…

•Complete

•Truthful – never falsify records

•Objective – factual

•Timely (Document immediately after you provide care. Never document ahead of time.)

•Legible/Grammar

•Used only approved abbreviations

•Signed or electronically stamped with your name/numbers

•If error made, follow policy to accurately document correction of error

Spoliation

•Destruction or alteration of medical records, such as a radiology report, by an unauthorized person

•Negligent or intentional destruction of evidence

Code of Ethics ARRT #6

•“The radiologic technologist act as an agent through observation and communication to obtain important information for the physician to aid in the diagnosis and treatment of the patient….”

Image Identification

•Liability has been imposed in cases based on the incorrect identification of films/images

•Select the proper name from the work list

•Mark left and right side of images properly

Occurrence/Incident Reports

•Objective documentation of an adverse event

•Needs to be placed in patient’s health record

•Includes the type of incident

•Patient’s reaction

•Notification of personnel

•Patient’s progress

•Contains information about a  specific occurrence

•Not kept with the health record but rather sent to risk management team or legal council

Ethics Committee

Serve as a problem-solving and decision-making body

•Physicians, chaplains, administrative personnel, employees from various departments, and occasionally legal representatives

Choose a course of action according to its best collaborative judgment of what should be done based on:

•Institutional values

•Personal values

•Moral meaning of the situation to all parties involved

Ethics committee Help healthcare professionals address ethical problems surrounding termination of treatment and related issues

•Education

•Develop policies regarding problem areas

•Death and dying

•Act as advisory consultants

Risk Management

•System for identifying, analyzing and evaluating risks and selecting the most advantageous method for treating them

•Developed to manage and control the amount of legal and financial risk to the organization

•Maintains high-quality patient care and conserves the facility’s financial resources

Risk Management

•Goals of a Risk Management program

•Elimination of the causes of loss experienced by the hospital and its patients, employees, and visitors

•Lessening of the operational and financial effects of unavoidable losses

•Covering of inevitable losses at the lowest cost

Risk Management Guidelines

•Follow facility and departmental policies and procedures

•Take a thorough, consistent and systematic approach to informed consent and documentation

•Strictly respect patient confidentiality

•Practice consistent radiation protection

•Be aware of safety issues

•Report hazardous conditions

Quality Assurance

• A process to assess quality of patient care that uses hospital committees to oversee the quality of various hospital functions

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•Functions mandated by the Joint Commission on Accreditation of Healthcare Organization

•Focuses more narrowly on patient care than risk management

Who can act as a Risk Manager?

•Hospital-employed risk manager or team

•Hotline: x5005 (RH)

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•Quality assurance programs

•Hospital committee

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•Each student or staff imaging professional