MS 02.00: Differentiate between legal and ethical issues impacting health care. Objective MS 02.01: Analyze legal responsibilities, limitations, and implications of actions.
Legal Responsibilities • According to Webster’s New World Dictionary: • LAWis defined as all the rules of conduct established and enforced by the authority, legislation, or custom of a given community or other group.
LAWS • Criminal Law – deals with wrongs against a person, property or society. • The offender can go to jail or prison. • Examples of criminal laws: • Practicing in a health care profession without a required license • Misuse of narcotics • Theft • Murder
LAWS • Civil Law – deals with legal relationships between people and the protection of a person’s rights. • Health Care is mainly affected by Civil Law.
TORTS • Tort – from the French word, “wrong.” • Tort can be defined as a civil wrong committed against a person or property excluding breach of contract.
Malpractice • interpreted as “bad practice.” • Defined as the failure of a professional to use the degree of skill and learning commonly expected in a particular profession resulting in injury, loss, or damage to the person receiving care.
Negligence • failure to give care that is normally expected of a reasonable person in the same situation, (or doing something that a reasonable person would not do) with resulting injury to another person.
Assault and Battery • Assault – any threat or willful attempt to injure another person with the apparent ability to do so. • Battery – unlawful touching of another person without consent.
Assault and Battery • A physician may be charged with assault and battery because of failure to obtain proper consent for treatment.
Informed consent • is permission granted voluntarily by a person who is of sound mind after the procedure and all risks involved have been explained in terms the person can understand. • They understand: What will be done, Who will do it, How it will be done, Expected outcomes.
Informed consent • The patient/client must also understand treatment alternatives and consequences of not having treatment. • The health care worker does not perform the procedure if the patient does not give consent.
Invasion of privacy • Unnecessary exposure of an individual or revealing personal information about an individual without consent.
False imprisonment • Restraining an individual or restricting an individual’s freedom.
Defamation of Character • Damaging a person’s name and/or reputation by making public statements that are false and malicious. • There are two types: • Libel – if the information released is written • Slander – if the information released is spoken.
Abuse • Any abuse that results in physical harm, pain, or medical anguish. • Abuse can be classified as: • Physical – hitting, forcing persons against their will, restraining movements, depriving of food or H2O, or not providing physical care. • Verbal – talking harshly, swearing or shouting, teasing, ridiculing, intimidating a person. • Sexual – any unwanted sexual touching or act.
Abuse • Child Abuse • Elder Abuse • Spousal (domestic) Abuse • Can be physical abuse, passive neglect, active neglect, psychological abuse, financial abuse
Abuse • **Laws in all states require reporting of any form of abuse to proper authorities.**
CONTRACTS • A Contract is a voluntary agreement between two or more parties • It has three parts.
CONTRACTS • Offer – competent individual enters into a relationship with health care providers and offers to be a patient. • Acceptance – health care provider gives an appointment or examines or treats a patient. • Consideration – payment made by the patient for services provided.
Types of Contracts • Implied – gives rise to contractual obligations by some action or inaction without verbally expressed terms.
Types of Contracts • Expressed– actual agreement between the parties, the terms are stated in distinct and explicit language, either orally or in writing.
Contracts • All parties in a contract must be free of legal disabilities. • A person with legal disabilities does not have the legal capacity to form a contract.**
Legal Disabilities • Minors • anyone under 18, or the age of majority, is called “an infant” under the law. • Mentally incompetent persons • Individuals under the influence of drugs that alter the mental state • Semi-conscious or unconscious people
Law of Agency • Agency is a personal relationship, created by the mutual consent of: • The Agent (employee) • The Principal (employer)
Law of Agency • The AGENT (employee) acts on behalf of the PRINCIPAL (employer) while supervised by the principal. • The principal is responsible for the actions of the agent and can be required to compensate or pay people who have been injured by the agent.
Law of Agency • Health care workers must be aware of the role as agents and work to protect the interests of the employer. • Agency may be expressed or implied, but is usually implied in the medical office.
Law of Agency • Privileged Communication • Covers all information given to health personnel by a patient. • Physician/Patient information cannot be told to anyone else without the written consent of the patient. • By law, this information must be kept confidential.
Privileged Communication Written consent should state: • 1. What information can be released. • 2. Who can get the information. • 3. Any time limits related to the release of information. • There are some exceptions to this……..
Privileged Communication Law requires these items be reported to appropriate governmental agencies 1. Births and deaths 2. Injuries caused by violence (abuse, etc.) 3. Drug abuse 4. Communicable disease 5. Sexually transmitted diseases
Health Care Records • Contain information on the care that has been provided to the patient. • Medical records belong to the health care provider but the patient has the right to obtain a copy.
Health Care Records • The medical record is a legal document and may be subpoenaed as evidence in a court of law.
Health Care Records • Errors must be corrected by drawing a single line through the mistake, inserting the correct information, dating the change, and signing your initials. • Erasures are not allowed!!!!!!!!!!!!!!
Health Care Records • Never chart any treatment(s) or procedure(s) until after you have done them
Health Care Records • Records must be maintained and retained for the amount of time as required by state law (2 to 7 yrs). • When records are destroyed, they must be burned or shredded.
Health Care Records • Computerized records have created modern dilemmas on maintaining confidentiality.
Patient Confidentiality • Health Insurance Portability and Accountability Act of 1996 (HIPAA) • Original goal – make it easier for people to move from one health insurance plan to another as they change jobs or stop working.
HIPAA • Also people must be able to move their medical records from provider to provider. • HIPAA requires all providers to use the same insurance forms to make it easier to share information. • BUT……………….
HIPAA • …..as information becomes simpler and easier to share, the risks of confidential information being released increases. • Additionally with more information being sent over computer networks and computerized records, the potential for leaks and abuse rises even more.
HIPAA • HIPAA makes it illegal to release health information to inappropriate parties or to fail to protect patient information!
Before HIPAA……. • An employer fired an employee after learning he had tested positive for a genetic illness that could lead to lost work days and increased insurance payments.
Before HIPAA……. • A congresswoman who had suffered from depression had her medical records released to a newspaper.
Before HIPAA……. • Medical information was used in divorce and custody cases.
AFTER HIPAA………. Civil penalties, which can accumulate into the thousands if multiple patients are involved.
AFTER HIPAA………. Criminal penalties include large fines and jail time. Penalties increase for selling information. Releasing information with harmful intent or profit can lead to 10 year jail sentence and $250,000 fine.
Legal Directives • Legal documents that allow individuals to state what medical treatment they want or do not want in the event that they become incapacitated and unable to express their wishes.
Legal Directives • Also known as advanced directives. • There are two main directives: • Living Wills • Healthcare Power of Attorney
Living Wills • Documents that allow individuals to state what measures should or should not be taken to prolong life when their condition is terminal. • Most states have laws that allow the withholding of life-sustaining procedures and honor living wills. • These frequently result in a DO NOT RESUSCITATE (DNR) order for a terminally ill individual.
Durable Power of Attorney • Document that permits an individual (principal) to appoint another person (agent) to make any decisions regarding health care if the principal is unable to make decisions
Durable Power of Attorney • Includes: • Providing or withholding specific medical or surgical procedures • Hiring or dismissing health care providers • Spending or withholding funds for health care • Having access to medical records
Patient Self-Determination Act (PSDA) of 1991 • a federal law passed by Congress in 1990 which requires all health-care institutions that receive Medicare or Medicaid funds to inform all adult patients through written information about their rights to accept or refuse medical or surgical treatment and the right to execute an "advance directive."