Chapter 5: Ethical and Legal Implications of Practice

Learning Objectives

• Summarize philosophical foundations of ethics and how they inform health-care practice
• Recognize what constitutes an ethical dilemma and common sources of dilemmas in contemporary health care (e.g., rationing, third-party standards, cost constraints, corporate influence, staffing shortages)
• Apply professional codes of ethics—specifically the AARC Statement of Ethics and Professional Conduct—to day-to-day decision-making
• Use traditional ethical principles (autonomy, veracity, non-maleficence, beneficence, confidentiality, justice, role duty) to resolve conflicts
• Gather all relevant clinical, psychosocial, legal, and organizational information before rendering an ethical decision
• Differentiate civil law from criminal law and recognize how malpractice and negligence are adjudicated in each system
• Identify ways respiratory therapists (RTs) can incur liability for wrongful acts and outline defenses
• List the core elements of a respiratory care practice act and explain the impact of licensure on responsibility and liability
• Describe how shifts in health-care financing, managed care, and home-care delivery have reshaped ethical and legal obligations
• Outline key provisions of HIPAA (1996), the Patient Protection and Affordable Care Act (2010), the National Labor Relations Act, and the False Claims Act
• Explain the purpose and legal force of advance directives and living wills

Introduction: The Threefold Force Behind Law

• State statutes regulate personal conduct
• State statutes & professional boards regulate the practice of RTs; they set minimum competency standards and continuing-education requirements
• Common (judge-made) law imposes civil liability for negligent or intentional acts, creating a duty to compensate injured parties

Distinguishing Ethical Misconduct From Illegal Acts

• Sanctions for ethical misconduct range from loss of professional standing to expulsion from societies; board discipline in one state usually triggers reciprocal action in others
• Patient injury can layer criminal penalties or civil judgments atop professional discipline
• Illegal acts violate universal civic standards (e.g., domestic assault); ethical misconduct violates profession-specific norms

Philosophical Foundations of Ethics

• Philosophy: “love of wisdom,” pursuit of knowledge about humanity, nature, reality
• Ethics: a branch of philosophy concerned with how we ought to act; encapsulated in mandate to “respect the humanity in persons”

Code of Ethics (AARC Statement)

• A profession’s code is essential to self-regulation and public trust
• Establishes behavioral parameters, articulates moral obligations, and often becomes a cross-examination tool in legal proceedings

Core Ethical Principles

• Autonomy

• Respects patients’ personal liberty & self-determination
• Foundation for informed consent; deception or coercion by an RT violates this principle

• Veracity

• Demands truthful exchange between provider & patient
• “Benevolent deception” (withholding truth for patient’s benefit) is generally discouraged; disclosure is usually the best policy

• Non-maleficence

• Obliges providers to avoid harm
• Modern therapies carry unavoidable risks; the key is risk–benefit balancing and reasonable foreseeability

• Beneficence

• Elevates “do no harm” to “actively do good”
• Conflicts arise when aggressive treatment may prolong suffering; spurred development of advance directives

• Confidentiality

• Protects privacy of patient information; qualified (exceptions: duty to warn, public-health reporting, etc.)
• Social media amplifies risk of inadvertent disclosure of Protected Health Information (PHI)

• Justice

• Fair distribution of scarce resources (distributive) & fair compensation for wrongs (compensatory)
• Health-care rationing & skyrocketing costs make this principle central; malpractice represents <2\% of total health-care cost

• Role Duty (Fidelity)

• Practitioners must stay within the limits of their defined professional role; performing outside scope breaches fidelity and may be negligent

Ethical Decision-Making Frameworks

• Formalism

• Rule-based; an act is justifiable if it upholds established duties/principles irrespective of outcomes

• Consequentialism

• Outcome-based; employs the principle of utility—choose the act that yields the greatest good for the greatest number
• Mixed forms: rule utilitarianism (follow rules that generally produce good consequences)

• Virtue Ethics

• Centers on character: “What would a virtuous practitioner do?”
• Leans on professional exemplars and pursuit of a life well lived

• Intuitionism

• Relies on self-evident moral truths and caregiver intuition, especially when formal tools yield no clear answer (e.g., “Treat others fairly”)

Contemporary Ethical Dilemmas in Respiratory Care

• Historic: patient expectations, staffing, quality of care
• Modern: managed-care rationing, insurance-mandated standards, corporate pressures, cost containment, persistent staffing shortages

Legal Frameworks Affecting Respiratory Care

• Systems of Law

• Public Law: Criminal (acts against public welfare) & Administrative (agency regulations)
• Civil Law: Protects individuals; courts adjudicate wrongs and award damages

• Tort Law

• A civil wrong requiring court-ordered remedy

• Functions: keep the peace & replace personal vengeance with legal settlement

• Three forms: negligent torts, intentional torts, strict liability (defective products)

  Elements of Negligence

• Duty owed

• Breach of duty

• Causation (actual & proximate)

• Damages (economic, noneconomic, punitive)

  Classifications of Malpractice

• Criminal (e.g., assault/battery)

• Civil (negligence)

• Ethical (professional code violations)

  Defenses Against Intentional Torts

• Lack of intent

• Informed consent by patient (aware of risks)

• Professional Liability & Risk Management

• Errors causing injury/death expose RTs and institutions to litigation; most cases settle before trial
• Hospitals deploy quality-review committees; therapists should carry personal malpractice insurance
• Best protections: continuous competency, adherence to standards, active risk-management & guest-relations policies

HIPAA (1996)

• Establishes national standards for PHI privacy & security
• Strives to balance patient confidentiality with free flow of data for quality care

Medical Supervision & Vicarious Liability

• RTs practice under a physician’s supervision per scope-of-practice statutes
• Employer (hospital or physician) may be liable for RT’s acts: doctrine of respondeat superior (“let the master answer”)
• Some states impose “failure to supervise” liability on physicians even when hospital employs the RT

Practice Acts & Licensure

• Core Components
  • Defined scope of practice
  • Qualifications for licensure
  • Exemptions (e.g., students, emergency care)
  • Administrative-action grounds
  • Exam board & procedures
  • Penalties for unauthorized practice
• Licensure statutes specify scope, require continuing education, and may evolve; RTs should know their act in detail and carry discipline-coverage insurance

Emergency Care & Good Samaritan Laws

• Permit RTs to render emergency aid without direct physician oversight
• Good Samaritan statutes shield volunteers from liability when acting in good faith

Corporate Compliance & Ethics–Law Interface

• Expansion into home care/DME introduces novel regulatory issues
• Corporate Compliance Officer (CCO) ensures adherence to laws, available for ethics consultations

Common Grounds for Professional Discipline

• Substance abuse
• Domestic violence
• Sexual misconduct or abuse
• Gross incompetence
• RTs should seek legal counsel when threatened with discipline

Whistle-Blower Protections

• Patient Protection and Affordable Care Act (PPACA, 2010) enhances protections for hospital workers reporting wrongdoing

National Labor Relations Act (NLRA)

• Safeguards collective activity—even for non-union employees
• Example: RT lobbying for shift-differential increase on behalf of peers is protected

False Claims Act

• Prohibits false claims to federal programs (Medicare/Medicaid)
• Penalties: up to triple damages + civil fines

Managed Care & Ethical Decision-Making

• Changing funding mechanisms & payer demands require RTs to integrate cost-effectiveness with patient-centered care

Advance Directives & Living Wills

• All U.S. jurisdictions recognize the right of competent adults to pre-specify treatment preferences
• Tools: living wills, durable power of attorney for health care, DNR orders
• Support autonomy & guide beneficence when patients lose decision capacity