Chapter 5: Legal and Ethical Issues in Medical Assisting

Objectives and Introduction to Medical Law and Ethics

• Learning Outcomes for Chapter $5$:

  • Distinguish the fundamental differences between laws and ethics ($5.1$).

  • Identify the specific rights and responsibilities of patients and physicians within a physician-patient contract, including the essential elements of informed consent ($5.2$).

  • Define the "Four Ds" of negligence (Duty, Derelict, Direct Cause, Damages) required to prove malpractice and explain the "Four Cs" of malpractice prevention (Caring, Communication, Competence, Charting) ($5.3$).

  • Summarize federal regulations including the Health Care Quality Improvement Act (HCQIA), Federal False Claims Act, Occupational Safety and Health Administration (OSHA), and the Health Insurance Portability and Accountability Act (HIPAA) ($5.5$).

  • Identify the six principles for preventing the improper release of information in a medical office ($5.6$).

  • Explain the role of ethics in the medical environment ($5.7$).

  • Contrast the various practice management models ($5.8$).

• Core Importance of Medical Law and Ethics:

  • Medical law is a critical component of the quality of patient care.

  • Medical assistants must have a comprehensive understanding of medical law, ethics, and HIPAA regulations.

  • Basic knowledge includes understanding rights, responsibilities, legal/ethical concerns, the impact of rising costs, and the protection of patient information.

Foundations of Law and Ethics

• Definitions:

  • Law: A rule of conduct or action that is formally recognized as binding and is enforced by a controlling authority (government) to maintain order and public safety.

  • Ethics: A standard of behavior based on moral values. These standards represent concepts of right or wrong and are heavily influenced by family, culture, and society.

• Classifications of Law:

  • Criminal Law: Laws regarding crimes and their punishments.

  • Civil Law: Laws concerning private rights and remedies.

• Types of Torts (Civil Wrongs):

  • Intentional Torts:

    • Assault: The threat of bodily harm.

    • Battery: Actual unprivileged touching or physical harm.

    • Defamation: Harming a person's reputation.

    • False Imprisonment: Intentional restraint of another person without legal justification.

    • Fraud: Deceitful practices in order to deprive someone of rights or property.

    • Invasion of Privacy: Interference with a person's right to be left alone.

  • Unintentional Torts:

    • Negligence: Failure to take reasonable care to avoid causing injury or loss to another person.

    • Malpractice: A specific type of negligence involving professional misconduct or lack of skill.

Contractual Agreements in Healthcare

• Four Elements of a Valid Contract:

  • Agreement: One party makes an offer and another party accepts it.

  • Consideration: Something of value is exchanged between parties.

  • Contractual Capacity: Both parties must be legally capable of entering into a binding agreement.

  • Legal Subject Matter: The contract must be for a lawful purpose.

• Types of Patient Contracts:

  • Expressed Contracts: Terms and conditions are clearly stated, either orally or in writing.

  • Implied Contracts: Acceptance is indicated by the conduct or actions of the parties (e.g., a patient presenting for treatment indicates they want to be treated).

• Employment Contracts: Typically include:

  • Description of duties.

  • Plans for handling job changes.

  • Compensation and benefits.

  • Grievance procedures.

  • Reasons and procedures for termination.

  • Special provisions.

Physician and Patient Rights and Responsibilities

• Physician Rights:

  • Set up a practice.

  • Select a specific location for the practice.

  • Choose a specialty.

  • Determine which specific services to provide.

• Physician Responsibilities:

  • Exercise "due care," skill, judgment, and diligence.

  • Maintain up-to-date medical knowledge.

  • Perform to the best of their ability.

  • Educate patients regarding their health conditions.

• Medical Assistant Liability:

  • Must operate strictly within their Scope of Practice.

  • Must understand the Standard of Care (the degree of care a reasonably prudent person should exercise under the same circumstances).

  • Must understand Duty of Care (the legal obligation to avoid causing harm).

• Patient Rights:

  • Right to select their physician.

  • Right to terminate services at any time.

  • Rights defined by the Patient Care Partnership.

• Patient Responsibilities:

  • Follow instructions and cooperate with the plan of care.

  • Provide all relevant medical information to the physician.

  • Follow the physician’s orders for treatment.

  • Pay fees charged for services provided.

Consent and Termination of Care

• Forms of Consent:

  • Implied Consent: Actions of the patient imply permission for treatment.

  • Informed Consent: The patient must receive all information necessary to make a decision regarding treatment. This is governed by the Doctrine of Informed Consent.

• Capacity to Consent:

  • Able to give consent: Adults of sound mind, emancipated minors, and mature minors.

  • Unable to give consent: Minors, mentally incompetent persons, and foreign language speakers without an available interpreter.

• Terminating the Physician/Patient Contract:

  • Reasons for termination: Refusal to follow instructions, family complaints, personality conflicts, failure to pay, or frequent missed appointments.

  • Required Procedure for Termination:

    1. Provide written notification.

    2. Send the letter via certified mail with a return receipt requested.

    3. Place a copy of the letter in the medical record.

    4. Thoroughly document the reasons and process in the patient record.

• Closing a Medical Practice:

  • Remain current on and comply with HIPAA laws.

  • Notify patients in writing.

  • Provide the option to choose another physician or give a referral.

  • Secure or dispose of patient records in an appropriate, legal manner.

Professional Liability and Medical Negligence

• Types of Medical Negligence:

  • Malfeasance: Performance of a totally wrongful and unlawful act.

  • Misfeasance: Performance of a lawful act in an illegal or improper manner.

  • Nonfeasance: Failure to perform an act that is a required duty or a person's responsibility.

• The Four Ds of Negligence (Required for Malpractice Claims):

  • Duty: It must be proven that a physician-patient relationship existed.

  • Derelict: The physician failed to comply with the standards of the profession.

  • Direct Cause: The physician’s breach of duty caused the patient’s injury.

  • Damages: The patient suffered a physical injury or loss.

• Legal Doctrines in Medical Liability:

  • Law of Agency: Employees act as agents of the physician.

  • Respondeat Superior: "Let the master answer." The physician is legally responsible for the negligent actions of their employees. However, employees remain legally responsible for their own actions and can be sued directly.

• Statute of Limitations: Laws that set a maximum period of time within which a claim or lawsuit must be filed. These deadlines vary depending on the type of case and whether it is in state or federal court.

Malpractice Prevention and Courtroom Conduct

• The Four Cs of Malpractice Prevention:

  • Caring: Showing sincere concern for the patient.

  • Communication: Maintaining clear and effective dialogue.

  • Competence: Staying skilled and knowledgeable in one's field.

  • Charting: Thorough, accurate, and timely documentation.

• Effective Communication Strategies:

  • Practice good listening skills.

  • Return phone calls promptly.

  • Ensure all informed consent forms are signed prior to treatment.

  • Avoid admitting guilt or fault.

  • Use tact, good judgment, and professional ability.

  • Ensure mutual understanding regarding clinical fees.

• Courtroom Conduct (Subpoena response/Trial behavior):

  • Attend all proceedings and arrive on time.

  • Bring required documents.

  • Refresh memory regarding the case details prior to testifying.

  • Speak professionally and answer only the questions asked.

  • Maintain a well-groomed appearance.

Documentation and Administrative Standards

• Standard of Care Requirements:

  • Maintain strict confidentiality.

  • Practice within training and capability limits.

  • Document accurately and prepare detailed medical records.

  • Use proper guidelines when releasing information.

  • Follow legal guidelines for disposing of regulated substances.

  • Adhere to risk-management and safety procedures.

  • Meet criteria for professional credentialing.

• Documentation Essentials:

  • Documentation of referrals, missed appointments, dismissals, and all other patient contacts.

  • Proper procedure for medical record correction.

  • Understanding the ownership, retention, and storage of patient records.

  • Poor documentation can lead to lost liability cases; records must show that nothing was neglected.

• Credentialing: The approval process used by Medicare and insurance carriers to verify that a provider is qualified. This includes the Provider Enrollment Chain and Ownership System (PECOS) via the CMS website ($www.cms.gov/manuals/downloads$).

Federal Regulations and Legislation

• Health Care Quality Improvement Act (HCQIA) ($1986$): Designed to improve medical care quality through peer review, numerical limitation of damages, and protection for information providers. It established the National Practitioner Data Bank.

• Federal False Claims Act: Includes Qui tam ("To bring action for the king and one’s self"). It controls illegal conduct such as:

  • False billing claims.

  • Kickbacks.

  • Self-referrals.

• Occupational Safety and Health Administration (OSHA): A division of the U.S. Department of Labor that protects workers from health hazards. Notable regulation: OSHA Blood-borne Pathogens Protection Standard ($1991$).

• FDA Regulatory Functions: Oversees drug manufacturing, nonprescription ($OTC$) drugs, prescription drugs, controlled substances, and pregnancy categories. Governed by the Comprehensive Drug Abuse Prevention and Control Act, which requires doctor registration with the DEA (Drug Enforcement Administration).

• Health Insurance Portability and Accountability Act (HIPAA):

  • Title $I$: Health Care Portability: Ensures insurance coverage for workers when they change or lose jobs.

  • Title $II$: Prevention of Health Care Fraud and Abuse, Administrative Simplification, and Medical Liability Reform: Includes standardized codes for electronic transaction records.

  • HIPAA Privacy Rule: Manages Protected Health Information ($PHI$), its use, disclosure, notice of privacy practices ($NPP$), and sharing ($TPO$ - Treatment, Payment, and Operations).

  • HIPAA Security Rule: Requires security officers, awareness training, audit controls, physical access limits, and risk analyses. Focuses on the security of charts, reception areas, patient care areas, faxes, copiers, and printers.

Patient Legal Documents and Ethics

• Patient Legal Documents:

  • Advance Medical Directive: Instructions for care if the patient is unable to communicate.

  • Durable Power of Attorney: Appointment of a person to make decisions on the patient's behalf.

  • Uniform Donor Card: Documentation of the intent to donate organs.

• Confidentiality Principles:

  • When in doubt, do not release information.

  • It is the patient's absolute right to keep information confidential.

  • Address confidentiality with equal weight for all patients.

  • Discussion with the patient is required if confidentiality must be broken; obtain written approval first.

• Ethics and Bioethics:

  • Bioethics: Social issues arising from medical advances.

  • Hippocratic Oath: Historical foundational ethical code for physicians.

  • AMA Code of Medical Ethics: Current professional standard for ethical conduct.

Practice Management Models

• Sole Proprietorship: A practice owned by a single individual.

• Partnership: A practice owned by two or more individuals.

• Group Practice: Three or more physicians sharing the practice income, expenses, and facilities.

• Professional Corporation: Physicians act as shareholders and employees of the corporation.

• Clinics: Various models of outpatient care facilities.

Questions & Discussion

• Question: What is the difference between law and ethics?

• Answer: A law is a rule of conduct or action enacted by governments to maintain order. Ethics is a standard of behavior based on moral values influenced by culture and society.

• Question: What are the patient's responsibilities?

• Answer: Following instructions, providing relevant information, following treatment orders, and paying fees.

• Question: What are the $4$ Ds and $4$ Cs?

• Answer: The $4$ Ds (Negligence) are Duty, Derelict, Direct Cause, and Damages. The $4$ Cs (Prevention) are Caring, Communication, Competence, and Charting.

• Question: What should you do before leaving a computer to attend to an emergency?

• Answer: Close the patient record and log off the computer to protect confidentiality.

• Question: May you release patient information to a police officer who requests it?

• Answer: No, you should refer the officer to the patient's physician, who will judge the urgency or potential danger.

• Question: What type of issue is it when a physician refuses to discuss a treatment due to a personal moral disagreement, and what is the solution?

• Answer: This is a bioethical issue. The physician should refer the patient to another specialist who provide the treatment.