Legal and Ethical Issues-Modified

8/14/2019 Legal and Ethical Issues-Modified

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Legal and thical Issues forHealthcare Professionals

Prepared by: Dr. Alber Paules, CPHQ


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Introduction Although healthcare organizations may operate as sole

proprietorships or partnerships, most functions as

corporations.

The corporation has a governing body that has ultimateresponsibility for the decisions made in the organization.

The governing body, having ultimate responsibility for theoperation and management of the organization,generally delegates responsibility for the day-to-dayoperations of the organization to the organization's chiefexecutive officer (CEO).


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Professional Liability ofHealthcare Providers

Tort: is a civil wrong committed against a person orproperty. In the US, a tort law exists; its basic objectives

include: 1) discourage the wrongdoer from committingfuture torts, 2) indemnify the injured person.

Negligence: Negligence is a tort. Negligence means lack of

proper and reasonable care; this is to be judged by peers.

A negligent professional is the one who does what areasonable person would not do and is the one who would

fail to do what a reasonable person would do, under like

circumstances and training. Malpractice is considered as

negligence or carelessness of a professional person. (e.g., a

nurse, pharmacist, and physician)


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Healthcare organizations, which are legally responsible for the

actions of their employees, are prone to face negligence.

When this occurs, this indicates the failure of the healthcare

organization to exercise the required reasonable degree ofcare.

In order for a patient to prove that a healthcare provider is

liable for negligence, the patient must show that:

(1) the healthcare provider owed a duty to the patient,

(2) the healthcare provider failed to meet or breached this

duty,

(3) injury or actual harm resulted to the patient, and

(4) there is a causal relationship between the negligent

conduct and the resulting injury/damage.


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Without harm or injury, there is no liability.

The mere occurrence of injury does not establish

negligence for which the law imposes liability,

since the injury may be the result of an

unavoidable accident or an act of God.

Negligence has two forms. It is either an

unintentional commission or omission of an act.


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Commission of an act would include:

1) administrating the wrong medication,2) administrating the wrong dosage of medication,

3) administrating medication to the wrong patient,and4) performing a surgical process withoutpatient consent.

Omission of an act would include:

1) failing to prescribe medications that should havebeen prescribed under the circumstances,2) failing to order diagnostic tests that should havebeen ordered under the circumstances, and

3) failing to follow up on abnormal test results.


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N.B. A nurse is considered negligent, andthus liable, in any of the following

situations: Failure to follow physician orders;

Failure to report significant changes in a patient's

condition;

Failure to take verbal or telephone orders correctly;

Patient falls;

Failure to report defective equipment.


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Duty to Care: Duty is defined as "a legal

obligation of care, performance, or observance

imposed on one to safeguard the rights ofothers".

A duty to care carries with it a responsibility not only

to provide care, but also to provide it in an acceptablemanner.

Duties of health care providers include conforming to

recognized standards of care, providing timely &

appropriate care and hiring competent staff.


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Sources of professional liability include the

following legal doctrines:

Corporate liability: It is the legal responsibility of

the healthcare organization to provide reasonable care

and safe environment to its patients/customers, to

provide functioning equipment and supplies, and to

select all persons who practice within the organizationwith care with commitment to supervise them.

A governing body can be held liable for a wrongful

action beyond its scope of authority.


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Respondeat Superior doctrine "let the master beresponsible/answer" (other name: Vicarious liability=

indirect responsibility for others' acts): the employer is

liable for negligent/wrongful acts for its employees. The

underlying rationale assumes that the employer possesses

the duty to control the conduct/physical acts of itsemployees and that the employer is in a better financial

position to compensate the victim. Because the law holds

negligent persons responsible for their negligent acts,

employees are not absolved from liability as well.


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Ostensible agency doctrine: liability exposures forhealthcare organizations are extended to include the acts of

non-employed, independent contractor physicians.

Res ipsa loquitur (= clear evidence): allows the patientto prove her/his case without the necessity of expert

testimony to establish the standard of care in this case.

Here, there is clear and obvious negligence that has resulted

in injury. (e.g.) surgical sponge or instrument left in the

patient's abdomen during surgery.


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Corporate Compliance In healthcare, compliance means "providing

and billing for services according to the laws,regulations, and guidelines that govern theorganization.

In many healthcare organizations, a ChiefCompliance Officer (CCO) is responsible to

establish and oversee processes necessary toprevent or quickly identify any inaccurate billingpractices or actual misbehavior that mightresults in errors identified as fraudulent and

abusing practices.


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Corporate Compliance The CCO collaborates with a Corporate Compliance

Committee, which is responsible for operating and

monitoring the compliance program, and which

reports to the CEO and the governing body.

Regular and effective educational and training

programs should be developed by the organization

for employees with potential to put the organizationat risk, and for physicians and nurses. Training and

educational programs should include: corporate

ethics, fraud and abuse laws, billing processes, and

ethical management styles.


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Patient dvocacyProgram

Patients comprise a large segment of a healthcareorganization's customers. Healthcare organizationsrely on their customers, particularly their patients

for viability in the community.

Thus, it is crucial for any healthcare organization tobe sensitive to its patient needs in order to improvecustomer satisfaction.

For any healthcare organization, patient satisfactionshould be of the same importance as having acompetent staff, advanced diagnostic andtherapeutic equipment, and improved patient

outcomes.


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Improved patient satisfaction begins with the recognition of

basic patient's rights.

Important components of any patient advocacy program

include policies addressing patient rights (e.g.) management

of patient complaints and inquiries.

Patients should be informed of their rights upon entry into a

healthcare organization; this can be achieved through giving

them/their families printed handouts/pamphlets detailing

patient's rights at the admission office or through posting this

information in patients' rooms, hallways, and lounges.


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The following statements are examples of such

type of information:

You have the right to receive considerate and respectful care. You have the right to be informed about your diagnosis,

condition, and treatment in terms that you can perceive.

You have the right to participate in the development and

implementation of your plan of care.

Your access to care will not be denied due to any of thefollowing individual characteristics: ethnicity, religion, or source

of payment.

It is our responsibility to keep all your personal and medical

information confidential and inaccessible except to your

assigned team of care.


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Processing Complaints

Tracking and trending patients' concerns, inquiries, and

complaints about services received can provide valuableinformation to the organization regarding patient satisfaction,

and subsequently regarding the quality of care given to

patients.

All information should be categorized, aggregated, and analyzed

with appropriate recommendations made and actions taken.

This is valuable information which should be a part of any

organization's performance improvement process.


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Processing Complaints

Concerns of patients are not only confined to the clinical

outcomes, patients are also concerned about the physicalenvironment or structure in which the care is delivered(e.g.) adequate parking spaces, short waiting times, timelyavailability of appointments, and respect for patientprivacy and comfort. Patients are also concerned abouthowcare is delivered (e.g.) how attentive caregivers are to

the patient and caregivers' willingness to listen topatients.

Appropriate management and handling of patient'sconcerns, inquiries and complaints is vital to achieving

patient's satisfaction.


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dvance Directives Patients have the right to make decisions about

their health care with their physician. They mayagree to a proposed treatment, choose among

offered treatments, or say no to a treatment.

Patients have this right even if they become

incapacitated and are unable to make decisions

regarding their conditions. In this case, the

decision is made in advance.


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dvance Directives

Advance Directive: a statement executed by aperson while of sound mind as to that persons

wishes about the use of medical interventionsfor him or her self in case of the loss of his or

her decision-making capacity.Advance directives allow the patient to state in

advance all kinds of medical care that he/sheconsiders acceptable or not acceptable.

The patient can appoint an agent, a surrogatedecision maker; to make those decisions onhis/her behalf.


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dvance Directives When admitted into the hospital, the patient

should be informed about the possibility andopportunity to develop his/her own advancedirective.

This interaction should be documented in thepatient's medical record.

The patient can execute a new directive at any

time if desired. The patient should beperiodically queried as to whether he/shewishes to make any changes with regard to anadvance directive.


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dvance DirectivesExamples of interventions that

patients might refuse include:

Feeding tubes fixation.

Resuscitation.


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Patient Confidentiality It is the duty of staff and employees working at a

healthcare organization to maintain confidentiality of

both verbal and written communications regarding a

patient's condition or personal information.

Information about a patient is confidential and should

not be disclosed without the patient's permission.

Those who come into possession of the most intimate

personal information about patients have both a legal

and an ethical duty not to reveal confidential

communications.


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Patient Confidentiality Medical records, with proper authorization, may

be used for the purposes of research, statisticalevaluation, and education.

The information obtained from medical records

must be dealt with in a confidential manner;

otherwise, an organization could incur liability.


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Patient Consent Consent is the voluntary agreement by person

who possess sufficient mental capacity to makean intelligent choice to allow somethingproposed by another to be performed onhimself or herself.

Consent must be obtained from the patient, orfrom a person authorized to consent on thepatient's behalf (due to patient's age orincapacity), before any medical procedure canbe performed.


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Patient Consent Every individual has a right to refuse to

authorize a touching.

If written, the consent should be kept in the

patient's medical record.

Consent can be either express or implied.


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Patient Consent Express consent can take the form of either a

"verbal" agreement or can be accomplished through

the execution of a "written" document authorizing

medical care. Oral consent is more difficult tocorroborate, while the written consent provides a

visible proof of the patient's wishes.

Implied consent is determined by some act orsilence, which raises a presumption that consent

has been authorized (e.g.) emergency consent,

patient who voluntarily gives his arm to the

physician to receive an injection.


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Patient ConsentN.B. Informed consent:

It is a legal concept that provides that a patient has a right

to know the potential risks, benefits, and alternatives of a

proposed procedure. It is the duty of the physician to disclose to the patient

sufficient information to enable the patient to evaluate a

proposed medical or surgical procedure before submitting

to it.

Informed consent requires that a patient have a fullunderstanding of that to which he or she has consented.

Getting an informed consent from the patient is the

treating physician responsibility.


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Patient ConsentN.B. Emergency consent:

When immediate treatment is required to preserve the life

of a patient or to prevent an impairment of the patient's

health, and it is impossible to obtain the consent of thepatient or representative legally authorized to consent for

him/her, an emergency exists and consent is implied.

The patient's record, in this case, should clearly indicate the

nature of the threat to life or health, its immediacy, and itsmagnitude.

Documents

Legal and Ethical Issues-Modified