Law, Ethics, Confidentiality in Allied Health

Law and Medical Offices

Healthcare workers interact with the law in various ways. Patients sue healthcare workers for medical malpractice. Government regulations create duties that, if violated, could carry civil or criminal penalties.

Failure to know and follow the law can expose you and your employer to civil litigation, civil penalties, or criminal prosecution.

What Is Law?

Law is the set of rules that govern our behavior. Law affects everyone.

Criminal law prohibits and punishes certain conduct for the benefit of society. A crime is an offense against a locale, a state, or the United States.

Criminal law prohibits certain behaviors and punishes people who commit offenses

Civil law concerns the private rights and duties of individuals who live within a society. A right is an individual power, privilege, or immunity. A duty is an individual obligation. We all have rights and duties concerning the way we interact with others.

Sources of Law

Constitutional, Statutory, Administrative, Common

Governments create laws.

The United States has a federal government created by the U.S. Constitution, and each state has a government created by its state constitution.

The U.S. government has three branches—legislative, executive, and judicial. Each branch can affect laws.

Legislation

Legislators adopt laws. Statutes are legislation passed by legislative bodies on the federal and state levels. Ordinances are legislation adopted by local legislative bodies.

Federal and state legislative bodies pass legislation called statutes.

Administrative Regulations

Administrative agencies create and enforce laws.

Agencies have the authority to create rules and regulations that clarify or interpret the basic statutes the agency is charged with enforcing. These administrative regulations have the same force of law that statutes have.

Common Law

Common law is developed from court decisions.

A system of law originally developed in England, called common law, is developed on a case-by-case basis from court decisions. Common law can be called court-produced law, case law, or judge-made law.

Licensing and Certification of Medical Personnel

Licensing protects the public by ensuring that such medical personnel have met certain minimum requirements.

Licenses can also be revoked. Grounds for revocation include unprofessional conduct, fraud, substance abuse, criminal conduct, and mental incapacity.

laws and regulations may prohibit persons without medical training from performing some medical-related tasks, such as administering injections, which must be performed by people with specific training or education.

Certification

refers to a professional organization or institution representing that a certified person has passed a test, completed a course of study, or demonstrated knowledge or skill in some other way.

Liability:

Negligence Liability

One area of common law, now modified by statute in some states, is negligence. Medical professionals have a duty to exercise reasonable care toward others. When they fail to meet that standard of care, they've been negligent and are liable for the damages they've caused.

The practice of medicine generally means diagnosing, treating, preventing, or curing diseases, ailments, or injuries.

Medical malpractice is a type of negligence case. When medical personnel act in a way that harms others or fail to act in a way that helps others, they can be liable for the harm caused.

Medical coders

Medical coders must adhere to standards of care, and understand the scope of their responsibilities.

Due care

includes the responsibility of the physician to hire qualified personnel and supervise the personnel accordingly.

Offices may use procedure manuals to define who can perform tasks and how they're to be performed.

Vicarious Liability

When one person is held responsible for the actions of another

respondent superior

in Latin means "Let the master answer." Scope of employment refers to actions taken in furtherance of the employer's business.

Difference between an employee and an independent contractor

depends on how much control the employer has over the person performing the work. Whether someone is an employee or an independent contractor matters because employers aren't vicariously liable for an independent contractor's negligence. Medical coders are generally employees, but may also work as independent contractors in some situations.

Prelitigation

Disputes that begin before litigation occurs, when something has happened and a patient is unhappy, are called prelitigation.

Litigation is the process for resolving disputes through the court system. Alternative dispute resolution (ADR) is a process for resolving disputes outside of the court system that may be used before or after litigation has begun.

Contingency fee

This means the attorney's payment is a percentage of the recovery. If there's no recovery, there's no fee.

A patient will seek the advice of an attorney if he or she thinks malpractice or negligence has occurred. A medical coder isn't liable for mistakes made by the doctor, but can be held liable for financial loss to the facility for inaccurate or fraudulent coding.

Litigation

Litigation begins when a complaint is filed with the court and served to the parties being sued. The plaintiff's (the person who is suing) complaint would be served—or delivered—to the defendants, or the people being sued, along with a summons, which is the court's formal notice that one is being sued.

Trial

A trial finds—or determines—the facts and applies the law to the facts.

jury trial

the fact-finder, and the judge explains the law to the jury and supervises the presentation of evidence.

Bench Trial

there's no jury—the judge serves as the fact-finder, weighs the evidence, and decides how the law applies to it.

Burden of Proof

what the plaintiffs are obligated to prove—in a civil case such as medical malpractice is a preponderance of evidence.

The burden of proof in a criminal case is different.

The prosecutor must prove guilt beyond a reasonable doubt to convict someone of a crime. The standard of beyond a reasonable doubt is much higher than a preponderance of evidence.

Evidence Rules

A jury hears the evidence of a case and decides whether there's enough evidence to make a judgment.

Preparing for Testimony

When testifying, a person must tell the truth, as perjury—false swearing under oath—is a crime.

• Answer only the question asked. Don't volunteer information that's not requested, especially on cross-examination.

• Ask to have the question repeated if you don't understand it or if it's complicated.

• Dress and behave professionally and respectfully.

• Don't argue, joke, or act flippant or bored. Be pleasant but serious.

ADR

Alternative Dispute Resolution

The two main types of ADR are arbitration and mediation.

Mediation

occurs when a neutral third person helps the parties in a dispute reach a settlement agreement. Mediators aren't judges—they don't hear evidence or make a decision about who is right.

There are two main styles of mediation:

facilitative

evaluative

In facilitative mediation, the mediator guides the mediation process, but doesn't express opinions on the merits of each party's position.

In evaluative mediation, however, the mediator gives opinions about the merits of the case, pointing out weaknesses in the position of the parties, and may predict what a judge or jury likely would do.

Law

The set of rules that govern our behavior

Criminal Law

Prohibits and punishes certain conduct for the benefit of society

Crime

An offense against a locale, a state, or the United States

Civil Law

Concerns the private rights and duties of individuals who live within a society

Right

An individual power, privilege, or immunity

Duty

An individual obligation

Three Levels of Government

federal, state, local

Statutes

Legislation passed by governing bodies on federal and state levels

Ordinances

Legislation adopted by local legislative bodies

Negligence

Failing to meet a standard of reasonable care

Due Care

The responsibility of a physician to hire qualified personnel and supervise the personnel accordingly

Alternative Dispute Resolution (ADR)

A process for resolving disputes outside of the court system that may be used before or after litigation has begun

Litigate

To begin a legal process involving a court

Plaintiff

The person who is suing

Defendant

The person who is being sued

Deposition

The taking of oral testimony under oath before trial

Jury Trial

A trial in which the jury is the fact-finder; the judge explains the law to the jury and supervises the presentation of evidence

Perjury

False swearing under oath

Appeal

During an appeal, the question is whether an error of law was made at the trial court level

Arbitration

Two parties present evidence to an impartial person who makes a binding decision

Defensive Medicine

Consists of medical responses that are motivated by a desire to avoid potential liability claims more than by the needs of the patient

Malpractice

Professional negligence

Expert Witnesses

People who have skill, experience, training, or education in a specialized field that ordinary people don't have

Types of Malpractice

Failure to diagnose

Failure to inform of diagnosis

Errors in treatment

Lack of informed consent

Informed Consent

Refers to a patient's acceptance of treatment after the doctor properly informs the patient about the treatment

Battery

The harmful touching of a patient without consent

Living Will

A document that states the patient's wishes regarding being allowed to die a natural death if the patient is in a permanent vegetative state or a terminal condition and lacks the ability to make medical decisions

Product Liability

The legal responsibility that a manufacturer or distributor of an unreasonably dangerous product has for damages caused by the dangerous condition

Contributory Negligence

When a patient contributes to causing himself or herself harm

Statutes of Limitations

The time periods during which a lawsuit must be brought

Negligence Versus Malpractice

Negligence is a failure to exercise the degree of care that a reasonable person would exercise under the same circumstances. A reasonable person is a prudent individual whose behavior would be considered appropriate under the circumstances.

Professional negligence is known as malpractice.

The difference between ordinary negligence and malpractice

is the standard of care required of the injuring party. Doctors and other healthcare professionals are held to a higher standard of care because of their specialized training and knowledge.is the standard of care required of the injuring party. Doctors and other healthcare professionals are held to a higher standard of care because of their specialized training and knowledge.

The professional standard of care

applies from the time the doctor-patient relationship begins until it ends. Healthcare professionals must exercise the degree of skill that other professionals with similar training would exercise under similar circumstances.

The Standard of Care

The standard of care is defined according to what an ordinarily prudent physician would have done under the same or similar circumstances. . . . Identifying the standard of care is critical. Whether a defendant physician breached his duty of care to a patient can't be determined without specific information about what the defendant should have done differently in a particular case.

Nonphysician Malpractice

Nurses, physician assistants, medical coders and medical assistants who undertake to perform medical services are held to a professional standard of care.

Res Ipsa Loquitur

"the thing speaks for itself." This sometimes can be the case in medical malpractice.