Legal and Ethical Issues

CHAPTER

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5Legal and Ethical

Issues

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Learning Outcomes

5.1 Explain the difference between laws and ethics.

5.2 Identify the responsibilities of the patient and physician in a physician-patient contract, including the components for informed consent that must be understood by the patient.

5.3 Describe the four Ds of negligence required to prove malpractice and explain the four Cs of malpractice prevention.

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5.5 Briefly summarize the purpose of the following federal healthcare regulations: HCQIA, Federal False Claims Act, OSHA and HIPAA.

5.6 Identify the six principles for preventing improper release of information from the medical office.

5.7 Explain the importance of ethics in the medical office.

5.8 Explain the differences among the practice management models.

Learning Outcomes

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Introduction

• Medical law is important quality of patient care

• You must understand– Medical law– Ethics– Health Insurance Portability and

Accountability Act (HIPAA)

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Introduction (cont.)

• Basic knowledge of medical law and ethics

– Rights, responsibilities, and concerns

– Legal and ethical issues

– Impact of rising costs

• Protected information

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Laws and Ethics

• Law

– Rule of conduct or action

– Formally recognized as binding

– Enforced by a controlling authority.

• Ethics – Standard of behavior

• Classification of Law

– Criminal law

– Civil law

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Laws and Ethics (cont.)

• Assault

• Battery

• Defamation

• False imprisonment

• Fraud

• Invasion of privacy

Unintentional Torts

• Negligence

• Malpractice

Intentional Torts

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Contracts

Contractual Capacity

Elements of a Contract

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Contracts (cont.)

• Types of contracts

– Expressed contracts – clearly stated

– Implied contracts – conduct of the parties indicated acceptance

– Legal elements

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Contracts (cont.)

• Employment Contract

– Description of duties

– Plans for handling change in job

– Compensation

– Benefits

– Grievance procedures

– Reasons for termination

– Termination procedures

– Special provisions

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Apply Your Knowledge

What is the difference between law and ethics?

ANSWER: A law is a rule of conduct or action and is enacted by governments to maintain order and public safety.

Ethics is a standard of behavior based on moral values that are influenced by family, culture, and society.

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The Physician/Patient Contract

• Reasonable limitations

• Both parties have rights and responsibilities related to the contract

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Physician Rights and Responsibilities

• Rights

– Set up a practice

– Select a location to practice

– Specialize

– Determine what services to provide

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Physician Rights and Responsibilities (cont.)

• Responsibilities

– Use due care, skill, judgment, and diligence

– Keep knowledge up-to-date

– Perform to the best of his or her ability

– Educate patients

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Physician Rights and Responsibilities (cont.)

• Medical Assistants and Liability

– Know scope of practice

– Understand

• Standard of care

• Duty of care

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Patient Rights and ResponsibilitiesRights

• Select a physician

• Terminate services

• Patient Care Partnership

Responsibilities

• Follow instructions and cooperate

• Provide relevant information

• Follow physician’s orders

• Pay fees

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Patient Rights and Responsibilities (cont.)

• Consent

– Implied consent – actions imply permission

– Informed consent

• Must receive all information necessary to make a decision regarding treatment

• Doctrine of informed consent

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Patient Rights and Responsibilities (cont.)

• Those able to give consent

– Adults of sound mind

– Emancipated minors

– Mature minors

• Those who cannot give consent

– Minors

– Mentally incompetent persons

– Foreign language speakers without an interpreter

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Terminating the Physician/Patient Contract

• Reasons for terminating care

– Refusal to follow instructions

– Complaints by family member

– Personality conflicts

– Failure to pay

– Failure to keep appointments

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Terminating the Physician/Patient Contract (cont.)

• When terminating care

– Provide written notification

– Send letter by certified mail, return receipt

– Place copy of letter medical record

– Document in the patient record

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Standard of Care

• Maintain confidentiality

• Practice within scope of training and capabilities

• Prepare and maintain medical records

• Document accurately

• Use proper guidelines when releasing information

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Standard of Care (cont.)

• Follow legal guidelines

• Maintain and dispose of regulated substances appropriately

• Follow risk-management and safety procedures

• Meet criteria for professional credentialing

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Closing a Medical Practice

• Comply with and stay current on HIPAA laws

• Notify patients in writing

• Give option of choosing another physician or make referral

• Secure or dispose of records appropriately

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ANSWER: Patient responsibilities are:

– Follow physician’s instructions and cooperate with plan of care

– Provide relevant information to the physician

– Follow the physician’s orders for treatment

– Pay the fees charged for services provided

Patients have rights and responsibilities relating to health care. The rights are determined by the Patient Care Partnership. What are the patient’s responsibilities?

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Preventing Malpractice Claims

• Lawsuits– Add to cost of healthcare

– Take a psychological toll on all involved

• Risk management– Identify and track– Develop improvement plans– Monitor– Assess

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Medical Negligence

• Malpractice claims

• Medical negligence

‒ Malfeasance

‒ Misfeasance

‒ Nonfeasance

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Duty

Derelict

Direct Cause

Damages

Patients must be able to prove all 4 Ds in order to move forward with a malpractice suit.

Medical Negligence (cont.)

Four Ds of Negligence

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• Malpractice lawsuits – civil law

– Tort

– Breach of contract

• Settling malpractice suits

– Trial

– Arbitration

– Subpoena

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• Law of Agency– Employees – agents of the physician

– Respondeat superior –

• “Let the master answer”

• Physicians are responsible for the negligence of employees

Employees are legally responsible for their own actions, and they can be sued directly.

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• Courtroom conduct

– Attend proceedings

– Be on time

– Bring required documents

– Refresh your memory

– Speak professionally

– Answer all questions

– Answer only the question asked

– Appear well groomed

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• Professional liability coverage

– Protects against financial losses

– High cost to practice

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Reason Patients Sue

• Unrealistic expectations

• Poor rapport and poorcommunication

• Greed and our litigious society

• Poor quality of care

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Preventing Malpractice Claims (cont.)

• Statute of Limitations– Laws that set the deadline or maximum period

of time within which a lawsuit or claim may be filed

– Deadlines vary • Type of case• State vs. federal court

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Caring

Communication

Competence

Charting

The 4 Cs of Malpractice Prevention

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• Effective Communication

– Good listening skills

– Return calls

– Be sure informed consent forms are signed

– Avoid admitting guilt

– Use tact, good judgment, and professional ability

– Reach an understanding about fees

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What are the 4 D of negligence needed to prove a malpractice and 4Cs of malpractice prevention?ANSWER:

The 4 Ds are duty, derelict, direct cause, and damages.

The 4 Cs are caring, communication, competence, and charting.

Bravo!

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Administrative Procedures and the Law

• Risk management

• Must meet legal standards

– Insurance billing

– Patient consent forms

– Office correspondence

– Documentation

– Appointment scheduling

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Documentation

• Referrals

• Missed appointments

• Dismissals

• All other patient contact

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Documentation (cont.)

• Medical record correction

• Ownership of the patient record

• Retention and storage of the patient record

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Credentialing

• Ensures healthcare providers are qualified

• Medicare requirements

• CMS Website– www.cms.gov/manuals/downloads. – Provider Enrollment Chain and Ownership

System (PECOS).

• Insurance carriers

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FDA Regulatory Function

• Drug manufacturing

• Nonprescription or OTC drugs

• Prescription drugs

• Pregnancy categories

• Controlled substances

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FDA Regulatory Function (cont.)

• Comprehensive Drug Abuse Prevention and Control Act

– Drug Enforcement Administration

– Doctor registration

– Ordering controlled substances

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Legal Documents and the Patient

• Advance medical directive

• Durable power of attorney

• Uniform donor card

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What are the legal implications of poor documentation?

ANSWER: Poor or incomplete documentation can contribute to the loss of medical liability cases. It is important that documentation demonstrate that nothing was neglected and that care given met standards.

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Federal Legislation Affecting Health Care

• Health Care Quality Improvement Act (1986)

– Improve the quality of medical care

• Peer review

• Limitation of damages

• Protection to those providing information

– National Practitioner Data Bank

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Federal False Claims Act

• Qui tam– To bring action for the king and one’s self

• Control three types of illegal conduct

– False billing claims

– Kickbacks

– Self-referrals

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Occupational Safety and Health Administration (OSHA)

• Division of the U.S. Department of Labor

• Protection of workers from exposure to health hazards on the job

• OSHA Blood-borne Pathogens Protection Standard –1991

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Health Insurance Portability and Accountability Act (HIPAA)

• Improve efficiency and effectiveness of health-care delivery

• Protect and enhance the rights of patients

• Improve the quality of health care

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HIPAA (cont.)

• Title I: Health Care Portability

• Title II: Prevention of Health Care Fraud and Abuse, Administrative Simplification and Medical Liability Reform

– The HIPAA Privacy Rule

– HIPAA Security Rule.

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HIPAA (cont.)

• HIPAA Privacy Rule - PHI

– Use

– Disclosure

– Managing and storing of patient information

– Notice of Privacy Practices (NPP)

– Sharing (TPO)

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HIPAA (cont.)

• HIPAA Security Rule– A security officer

– Security awareness training

– Audit controls

– Limit physical access

– Conduct risk analyses

– Establish policies and procedures

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HIPAA (cont.)

• HIPAA Security Rule

– Chart security

– Reception area security

– Patient care area security

– Fax security

– Copier and printer security

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HIPAA (cont.)

• HIPAA Security Rule– Violations and penalties

– Administrative simplification• Standardizing patient information

• Standardized codes and formats – electronic transaction records

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2. While you are documenting on the computer, you are called to a patient room for an emergency. What should you do before leaving the computer?


ANSWER: OSHA regulations describe precautions that must be taken to protect workers from exposure to health hazards on the job.

1. What do OSHA regulations describe?

ANSWER: You should close the patient record and log off the computer to protect the confidentiality of patient information.

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Confidentiality Issues and MandatoryDisclosure

1. When in doubt, do not release information.

2. It is the patient’s right to keep patient information confidential.

3. Use the same degree of confidentiality for all patients.

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Confidentiality Issues and MandatoryDisclosure (cont.)

4. Be aware of all applicable laws and of the regulations.

5. If it is necessary to break confidentiality discuss situation with the patient.

6. Obtain written approval from the patient before releasing information.

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A police officer enters the physician’s office where you work and requests information about a patient. May you release this information? What should you do?


ANSWER: No, you should not be the person to release this information. You should refer the officer to the patient’s physician, who will make the judgment based on the urgency of the situation and any danger that might be posed to the patient or others.

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Ethics

• Principles of right and wrong vs. requirements of law

• Bioethics: social issues– Issues that arise due to medical advances

– Hippocratic Oath

– AMA: Code of Medical Ethics: Current Opinions with Annotations

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Mr. Jones would like to try a new treatment for his Parkinsonism, but his physician refuses to discuss a new treatment with Mr. Jones because he morally disagrees with this type of treatment. This is an example of what type of issue, and what should the physician do?

ANSWER: This is an example of a bioethical issue. The physician should refer the patient to another physician who specializes in this treatment.

Good Answer!

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Legal Medical Practice Models

• Five types of practice models

– Sole proprietorship

– Partnership

– Group practice

– Professional Corporation

– Clinics

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What is the difference between a group practice and a professional corporation?

ANSWER: A group practice is three or more physicians who share the practice income, expenses, and facilities. In a professional corporation the physicians are shareholders and employees of the corporation.

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In Summary

5.1 A law is a rule of conduct or action. Ethics are standards of behavior or concepts of right or wrong.

5.2 Physician and patient rights and responsibilities.

5.3 The four Ds of malpractice and the four Cs of malpractice prevention.

.

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In Summary (cont.)

5.4 Credentialing is the approval process a healthcare provider must go through to be allowed to bill Medicare and other insurance carriers for providing medical services to patients under their insurance plans.

5.5 Federal healthcare regulations: HCQIA, Federal False Claims Act, OSHA, and HIPAA.

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In Summary (cont.)

5.6 The six rules for preventing improper release.

5.7 Ethics reflect the general principles of right and wrong. A professional, particularly a medical professional, is expected to follow especially high ethical standards.

5.8 There are five basic types of practice management models.

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Let no one come to you without leaving better and happier.

—Mother Theresa

End of Chapter 5