UNIT 7: LEGAL AND ETHICAL

1. UNIT 7: LEGAL AND ETHICAL

2. UNIT 7: What standards are we studying?

3. What types of law violations are most common in health care – criminal or civil? • Civil laws are the laws most commonly affected in health care • In standard IHS-8, element “a” asks you to differentiate between “moral”, “ethical” and “legal” • Observe the video clip and list where you find “moral”, “ethical” and “legal” issues.

4. What are the differences? • Legal: Based on/concerned with law: legal system • Two types of law: • Civil: Laws concerned with private rights or remedies • Criminal: laws designed to protect members of society from certain harmful acts of others • Moral: Formed from personal values – your concept of right and wrong • Ethics: Standards of behavior developed as a result of moral values

5. What’s wrong with this picture?

6. Oath Comparisons

7. Consent as a contract • Medical treatments cannot be carried out unless the patient gives his/her CONSENT (permission) • When the procedure has been explained, including possible consequences, it is known as INFORMED CONSENT • Touching a patient without permission can result in BATTERY charges

8. Types of Consent • Implied consent • Indicated by the individual’s actions (for example, showing up for a doctor’s appointment, opening mouth for dental exam) • Express consent • Given in writing and is required for many procedures, especially those that are invasive

9. Elements of Informed Consent • Procedure or treatment plan • Possible risks • Expected results • Alternative procedures with benefits and risks • Consequences if procedure is not performed properly

10. WHO CAN GIVE CONSENT? • Mentally competent adults can sign consent • Emancipated minors (under the age of 18 but married, financially independent, or in the military) can sign consent • Individuals under the age of 18 who are not emancipated MAY be required to have parent signature – varies by state and by procedure (ie may be under age for drug counseling, health counseling etc…and not require parent consent)

11. How does treatment of those with legal disabilities differ? Lack of legal capacity or qualification, such as that of a minor or a mentally impaired person, to enter into a binding contract. Read more: http://www.businessdictionary.com/definition/legal-disability.html#ixzz21bb2z9m0

12. What does “legal disability” mean? WHO ARE INDIVIDUALS WITH LEGAL DISABILITIES? Minors under the age of 18 Mentally incompetent persons Individuals under the influence of drugs that alter the mental state Semi-conscious or unconscious people

13. TORTS: The word “tort” comes from the French word for wrong. Torts refer to civil court cases – all negligence and intentional wrongs that result in harm Every tort has to have certain elements in order for the tort to meet the legal definition

14. Types of Tortsintentional v negligentharm to person v harm to property

15. FOR EXAMPLE: ASSAULT Assault: fear of harm “reasonable apprehension of imminent (immediate) violent injury from an unlawful act” Examine the elements • The person threatening must have ability to carry out the threat • May also be attempted harm (ie swing and miss) • While elements require the act to causes reasonable apprehension, the result is not judged by the anticipated results by the person threatening. This is called “Glass Jaw” – meaning that you are judged on how that person reacted, not on what you thought would happen. For example, you tapped the person in front of you on the jaw to get their attention. The person had a glass jaw that shattered when you touched it. The court does not take into account your lack of force – just the broken jaw.

16. Let’s look at a court case…… In January 1998, James "Mark" Law, age 14, was referred for sinus surgery by his pediatrician to the defendant doctor, a nationally known pediatric ear, nose and throat surgeon on staff at University of Virginia Hospital. Having been told by Mark's referring physician that the defendant was "the best," Mark's mother consented to the defendant performing the surgery. However, unknown to either Mark or his mother, Dr. Gross did not perform the surgery and was, in fact, not even in the room during most of the surgery. Instead, two residents performed the surgery. Complications occurred during the surgery, and, as a result, Mark was blinded in one eye. The case was tried exclusively on the issue of consent. The defendant admitted that he never told Mark or his mother that he would not operate or remain in the operating room during surgery. Instead, he claimed that substituting surgeons in a teaching institution was not a violation of the standard of care and that Mark's mother should have known that such a substitution would occur because Mark had received treatment at the University of Virginia on prior occasions. The plaintiff argued that a mother has a right to know who is operating on her son. The jury deliberated for three hours and returned a verdict of $750,000. This verdict is believed to be one of the largest medical malpractice verdicts to date in the Circuit Court for the City of Charlottesville. http://www.allenandallen.com/medical-malpractice-results.html

17. PRESUMED CONSENT In the previous court case, the issue involved presumed consent. Presumed consent also occurs in school hallway, elevator or if the patient is unconscious. The courts remain clear on this issue – upholding a patient’s right to refuse procedures even if the procedures are deemed necessary for the patient’s own well being. If a health care worker states they are going to carry out procedures against a patient’s wishes, this is assault. If the health care worker actually carries out the procedure, it is both assault and battery. Battery not only includes touching a person without consent, but also touching their objects or clothing without their consent. Roberson v. Provident House, 576 So. 2d 992, 1991 In this Louisiana case, a nurse inserted an in-dwelling catheter over the objections of a patient. This was not an emergency situation, so the Court argued that the nurse committed a battery. The procedure was performed absent informed consent.

18. ALWAYS, ALWAYS, ALWAYS get consent! For example, think back to CPR: If the victim was choking, conscious – you identified yourself as a health care provider and ASKED the victim if you could help them. If the victim says no, then you may not assist them until something changes in the situation.

19. What is wrongful death? The death of a human being caused by the INTENTIONAL act of another. (how to determine damages in civil court – look at the earning capacity of that person and put an amount on that) Is this fair?

20. Give an example of wrongful death • “Mercy Killing” • Murder

21. RESTRAINT POLICIES: Give conditions for using restraints, time limited order (must be renewed every 24 hours) If not renewed, cannot keep person in restraints. A belief of imprisonment is enough bo create a case What is “False Imprisonment” Unlawful confinement to bounded area of one person by another for any length of time whereby the victim is deprived of liberty This would include side rails, restraints, etc….

22. What is NEGLIGENCE? • Failure to perform legal duty which was the proximate cause of damages suffered by another and damages reasonably foreseeable • Standard of care is what establishes legal duty • Have to be informed about what the standard of care is! (For example, what would you say the standard of care for hand washing is? ) • The proximate cause refers to the NUMBER 1 cause – how far in the chain of causation did you have to go to get to that cause? • Damage has to be foreseeable – not like the glass jaw – ie NOT like the Direct TV commercials!

23. Invasion of Privacy • Public disclosure of private facts which are highly offensive and objectionable to a reasonable person and not a matter of public opinion • (there is no dollar amount cap on this tort – could be very expensive!) • NO FACEBOOK POSTINGS ABOUT HEALTH CARE EVENTS/patients etc…

24. What is DEFAMATiON? • An untruthful statement published to a third person without privilege which injures the reputation of the person about whom the statement was made • Written – Libel • Spoken – Slander • Look at emotional and economic effects – can use emotional to presume damage • The question is whether it is opinion vs untruthful statement of fact • Statements of opinion are NOT defamation • Have to prove malice v good faith report • Emotional distress in these cases are measured against a very high standard – must be intentional or reckless conduct which is extreme and outrageous and can cause severe emotional distress

25. Cobb County: Alex Boston Case: A teenager in Georgia has decided to take things into her own hands after her school and police said they could do nothing about classmates bullying her on Facebook. Fourteen-year-old Alex Boston and her parents are filing suit against two classmates and their parents for libel after the two classmates allegedly created a fake Facebook account in her name, using a photo of her that they distorted. The account was also used to post a racist video to YouTube that implied that Boston hated African-Americans, and to leave crude comments on the Facebook pages of other friends 95% of torts are settled out of courts Trial courts unpredictable – Westchester, NY: The family of a 3-year old boy who allegedly developed cerebral palsy as a result of unnecessary delays during his birth has been awarded $77,418,670 as settlement of their medical malpractice suit. Questions and Discussion

26. $120 million dollar award: allergic reaction, brain damage 45 year old woman – May, 2012 The Health and Hospitals Corporation declined to discuss the specifics of Ms. Martin’s medical history, but said that some components of the award appeared excessive. Though Ms. Martin, a mother of two, earned less than $40,000 a year as a claims adjuster, the jury awarded her $10 million in lost earnings. Ms. Martin’s medical costs since 2004, covered by Medicaid, totaled $583,000, the corporation said, but the jury awarded her $5 million for past medical costs. THE ABOVE ARGUMENT AGAINST THE AWARD REFLECTS THE IDEA THAT DAMAGES SHOULD BE QUANTIFIED TO THE VALUE OF THE PERSON’S LIFE (LIFETIME EARNINGS, POTENTIAL WEALTH OR LACK OF WEALTH) – BUT JURIES ARE UNPREDICTABLE (which is why most torts settle out of court)

27. Who could give consent if the individual is unable to consent? • Legal documents that allow a person to state their wishes concerning medical treatment if they are unable to express their wishes are called ADVANCE DIRECTIVES • There are two major forms of advance directives: • Designated health care surrogate/PROXY: the individual designates certain people authorized to act on their behalf if they cannot express their health care decisions (varies state to state in requirements) • Living Will: Outlines individual’s wishes with respect to type and extend of care

28. PATIENT SELF DETERMINATION ACTFederal legislation passed in 1991that requires hospitals, nursing homes, rehabilitation facilities and hospices to have written policies about advance directives and to communicate these policies to patients when they are admitted.Patients are not required to prepare directives, but must be informed

29. References