Medicine and Law

1Copyright © 2011, 2007, 2003, 1999 by Saunders, an imprint of Elsevier Inc. All rights reserved.

Medicine and LawMedicine and Law

Chapter 7


IntroductionIntroduction

The study of law and medicine provokes The study of law and medicine provokes interesting case studies and complex decisions.interesting case studies and complex decisions.

Ethics and law go hand in hand when applied to Ethics and law go hand in hand when applied to the medical profession.the medical profession.


How can the medical assistant help to comply How can the medical assistant help to comply with legal regulations in the medical office?with legal regulations in the medical office?

How can new graduates learn about the laws How can new graduates learn about the laws that affect them in their state?that affect them in their state?

What are some ways that medical What are some ways that medical professional liability suits can be avoided?professional liability suits can be avoided?

What should the medical assistant do if the What should the medical assistant do if the employer is not in compliance with legal employer is not in compliance with legal regulations?regulations?

Legal QuestionsLegal Questions


The types and categories of lawThe types and categories of law The law as it relates to medical professional The law as it relates to medical professional

liabilityliability The elements of a valid contractThe elements of a valid contract The court processThe court process Types of negligenceTypes of negligence Issues regarding consentIssues regarding consent Laws affecting medical practiceLaws affecting medical practice

This chapter will examine:This chapter will examine:


Types of LawsTypes of Laws

Act—passed by CongressAct—passed by Congress

Statutes—enacted by state legislaturesStatutes—enacted by state legislatures

Ordinances—created and enacted by local Ordinances—created and enacted by local governmentsgovernments

Precedents—previous judicial decisions that Precedents—previous judicial decisions that influence a current rulinginfluence a current ruling


Criminal LawCriminal Law

Criminal law deals with offenses against the state or Criminal law deals with offenses against the state or government.government.


Basic Categories of Criminal LawBasic Categories of Criminal Law

MisdemeanorsMisdemeanors Minor crimes, punishable by a fine or Minor crimes, punishable by a fine or

imprisonment in a city or county jail for 1 year imprisonment in a city or county jail for 1 year or lessor less

Vary from state to stateVary from state to state Often classified as class A, class B, and class C Often classified as class A, class B, and class C

depending on the seriousness of the crimedepending on the seriousness of the crime



FeloniesFelonies Major crimes, such as murder, rape, and Major crimes, such as murder, rape, and

burglaryburglary Punishable by a more stringent sentence than Punishable by a more stringent sentence than

are misdemeanorsare misdemeanors Can receive probation, imprisonment for 1 year Can receive probation, imprisonment for 1 year

or moreor more Divided into first degree, second degree, and Divided into first degree, second degree, and

third degreethird degree



TreasonTreason Most serious crime against the United StatesMost serious crime against the United States Attempting to overthrow the governmentAttempting to overthrow the government


Civil LawCivil Law

Civil law involves acts that are not criminal in Civil law involves acts that are not criminal in nature but involve relationships among nature but involve relationships among individuals, organizations, or government individuals, organizations, or government agencies.agencies.


Basic Categories of Civil LawBasic Categories of Civil Law

Tort LawTort Law Provides remedies for individuals who have Provides remedies for individuals who have

been harmed by the wrongful acts of othersbeen harmed by the wrongful acts of others


Proving Breach of Tort LawProving Breach of Tort Law

Four ElementsFour Elements

1.1. Legal duty to act was presentLegal duty to act was present

2.2. Duty to act was breachedDuty to act was breached

3.3. Failure to act caused injury or damageFailure to act caused injury or damage

4.4. Injury or damage was a result of the breach Injury or damage was a result of the breach of duty of duty

Note: Medical professional liability falls into the Note: Medical professional liability falls into the category of tort law.category of tort law.



Contract LawContract Law

Contracts are agreements that create an Contracts are agreements that create an obligation.obligation.

They can be oral or written to be binding.They can be oral or written to be binding.



Administrative LawAdministrative Law

Involves regulations set forth by governmental Involves regulations set forth by governmental agencies.agencies.

IRS, SSA, USCIS, and CMS are examples of IRS, SSA, USCIS, and CMS are examples of agencies that use administrative law.agencies that use administrative law.


Anatomy of Medical Professional Anatomy of Medical Professional Liability LawsuitsLiability Lawsuits

Most medical professional liability lawsuits stem from a Most medical professional liability lawsuits stem from a breach of trust between the physician and patient.breach of trust between the physician and patient.


Valid Legal ContractsValid Legal Contracts

Four Essential Elements:Four Essential Elements:

1.1. Manifestation of assentManifestation of assent

2.2. Legal subject matterLegal subject matter

3.3. Legal capacity to enter into a contractLegal capacity to enter into a contract

4.4. ConsiderationConsideration


Physician-Patient RelationshipPhysician-Patient Relationship

The physician-patient relationship is considered The physician-patient relationship is considered contractual as a result of three events:contractual as a result of three events:

1.1. Physician invites an offer by establishingPhysician invites an offer by establishing availability. availability.

2.2. Patient accepts the invitation and arrives forPatient accepts the invitation and arrives for treatment. treatment.

3.3. Physician accepts the patient and beginsPhysician accepts the patient and begins treatment. treatment.


Implied ContractImplied Contract

The physician will treat the patient using The physician will treat the patient using reasonable care.reasonable care.

The physician possesses a degree of The physician possesses a degree of knowledge, skill, and judgment that is knowledge, skill, and judgment that is reasonably expected of any physician in the reasonably expected of any physician in the same areasame area..


Protection against Abandonment Protection against Abandonment ChargesCharges

Notify a patient in writing if withdrawing from Notify a patient in writing if withdrawing from medical care, stating:medical care, stating: Professional medical care is being discontinuedProfessional medical care is being discontinued Copies of medical records will be sent toCopies of medical records will be sent to another physician on request another physician on request Patient should seek medical care immediatelyPatient should seek medical care immediately


Court SystemsCourt Systems

City Courts—Municipal CourtsCity Courts—Municipal Courts Usually deal with ordinance violationsUsually deal with ordinance violations May issue search and arrest warrantsMay issue search and arrest warrants

Justice of the Peace CourtsJustice of the Peace Courts Share some responsibilities with city and/or Share some responsibilities with city and/or

municipal courtsmunicipal courts Often function as small claims courtsOften function as small claims courts


County CourtsCounty Courts

Handle misdemeanors and civil matters up to a Handle misdemeanors and civil matters up to a certain monetary limitcertain monetary limit

Have jurisdiction over matters that take place in Have jurisdiction over matters that take place in specific countiesspecific counties


District CourtsDistrict Courts

Unlimited jurisdiction in criminal and civil Unlimited jurisdiction in criminal and civil mattersmatters

Highest state courts other than appellate courtsHighest state courts other than appellate courts The U.S. District Court handles federal civil and The U.S. District Court handles federal civil and

criminal matters criminal matters


State Supreme CourtsState Supreme Courts

Most states have an Appellate Court for both Most states have an Appellate Court for both criminal and civil matters. criminal and civil matters.

States also have Supreme Courts that handle a States also have Supreme Courts that handle a limited number of appellate cases. limited number of appellate cases.


U.S. Supreme CourtU.S. Supreme Court

Located in Washington, D.C.


Supreme Court DocketSupreme Court Docket

Eight thousand cases are on the docket Eight thousand cases are on the docket each year.each year.

Eighty to 90 cases are chosen to be heard by Eighty to 90 cases are chosen to be heard by the court.the court.


Preparing for CourtPreparing for Court

Telling the truth and being truthful in the answers Telling the truth and being truthful in the answers given to the court avoids:given to the court avoids: Losing his or her credibility in the trialLosing his or her credibility in the trial Being charged with perjuryBeing charged with perjury


InterrogatoryInterrogatory

An interrogatory is a list of questions from each An interrogatory is a list of questions from each party to the other in a lawsuit.party to the other in a lawsuit.

Answers must be provided within a specific Answers must be provided within a specific timeframe.timeframe.

Only parties named in lawsuit may be Only parties named in lawsuit may be questioned.questioned.


DepositionDeposition

A deposition is testimony taken from a party or A deposition is testimony taken from a party or witness to the litigation.witness to the litigation.

It is not limited to the parties named in the It is not limited to the parties named in the lawsuit.lawsuit.


SubpoenasSubpoenas

A subpoena is a writ or document commanding A subpoena is a writ or document commanding a person to appear in court under a penalty for a person to appear in court under a penalty for failure to appear.failure to appear.

Subpoena duces tecum Subpoena duces tecum is a legally binding is a legally binding request to appear in court and provide records request to appear in court and provide records or documents that pertain to a particular case.or documents that pertain to a particular case.


DiscoveryDiscovery

Discovery is the pretrial disclosure of pertinent Discovery is the pretrial disclosure of pertinent facts or documents by one or both parties to a facts or documents by one or both parties to a legal action or proceeding.legal action or proceeding.

Also the process of uncovering facts in a lawsuit Also the process of uncovering facts in a lawsuit before court proceedings.before court proceedings.

Documentary evidence Documentary evidence may include items such may include items such as a patient’s medical record, a letter, a as a patient’s medical record, a letter, a laboratory result, and a photograph.laboratory result, and a photograph.


Preparing to TestifyPreparing to Testify

Review potential questions with the attorney. Review potential questions with the attorney. Clarify answers to provide accurate Clarify answers to provide accurate

explanations.explanations. Make sure that accurate directions to the Make sure that accurate directions to the

courthouse are handy.courthouse are handy. Always be on time.Always be on time. Dress conservatively in business attire. Dress conservatively in business attire. Review documents before the court date. Review documents before the court date.


Testifying in CourtTestifying in Court

Speak clearly and audibly.Speak clearly and audibly. Answer all questions aloud.Answer all questions aloud. Be courteous to everyone.Be courteous to everyone. If the answer to a question is “I don’t know,” do If the answer to a question is “I don’t know,” do

not answer using any other phrase.not answer using any other phrase. Wait for judges to rule on objections before Wait for judges to rule on objections before

continuing testimony.continuing testimony. Address the judge as “Your Honor.”Address the judge as “Your Honor.” Be professional at all times.Be professional at all times.


Roles in the CourtroomRoles in the Courtroom

Plaintiff or PetitionerPlaintiff or Petitioner Person or group that initiates the lawsuitPerson or group that initiates the lawsuitDefendant or RespondentDefendant or Respondent Person accused of a crime or required to make Person accused of a crime or required to make

answer in a legal action or suitanswer in a legal action or suitJudgeJudge Presides over the courtroomPresides over the courtroomBailiffBailiff An officer of the court who keeps order at the An officer of the court who keeps order at the

request of a judgerequest of a judge


Burden of ProofBurden of Proof

Criminal Cases: Beyond a reasonable doubtCriminal Cases: Beyond a reasonable doubt

Reasonable doubt is defined as the level of Reasonable doubt is defined as the level of certainty a juror must have to find a defendant certainty a juror must have to find a defendant guilty of a crime.guilty of a crime.


Burden of ProofBurden of Proof

Civil Cases: By a preponderance of the evidenceCivil Cases: By a preponderance of the evidence

Having a preponderance of the evidence means Having a preponderance of the evidence means that there is a greater weight of evidence that that there is a greater weight of evidence that points to the defendant or respondent as being points to the defendant or respondent as being responsible for the act involved in the case. responsible for the act involved in the case.


The VerdictThe Verdict

The verdict is the outcome of the case or final The verdict is the outcome of the case or final judgment made by the judge or a jury.judgment made by the judge or a jury.


ArbitrationArbitration

Arbitration is an alternative to court trials that Arbitration is an alternative to court trials that uses a third party to hear evidence in a case uses a third party to hear evidence in a case and make a decision.and make a decision.

It is fairly common method for resolving legal It is fairly common method for resolving legal disputes between physician and patient.disputes between physician and patient.


Medical Professional LiabilityMedical Professional Liability

Also known as Also known as medical malpracticemedical malpractice Much more easily prevented than defendedMuch more easily prevented than defended Commonly caused by a deterioration of the Commonly caused by a deterioration of the

patient-physician contractpatient-physician contract


NegligenceNegligence

The performance of an act that a reasonable The performance of an act that a reasonable and prudent physician would not perform, or the and prudent physician would not perform, or the failure to perform an act that a reasonable and failure to perform an act that a reasonable and prudent physician would perform.prudent physician would perform.

If the patient contributes to the worsening of his If the patient contributes to the worsening of his or her condition, he or she is guilty of or her condition, he or she is guilty of contributory negligencecontributory negligence..


Three Classifications of NegligenceThree Classifications of Negligence

Malfeasance: The performance of an act that is Malfeasance: The performance of an act that is wholly wrongful and unlawful.wholly wrongful and unlawful.

Misfeasance: The improper performance of a Misfeasance: The improper performance of a lawful act.lawful act.

Nonfeasance: The failure to perform an act that Nonfeasance: The failure to perform an act that should have been performed.should have been performed.


Expert WitnessExpert Witness

An expert witness provides testimony to a court to verify An expert witness provides testimony to a court to verify facts presented by one or both sides in a lawsuit.facts presented by one or both sides in a lawsuit.


ConsentConsent

Implied:Implied:

The patient extends his or her arm for an injection The patient extends his or her arm for an injection or phlebotomyor phlebotomy

Informed:Informed:

Written consent for a surgical procedure or other Written consent for a surgical procedure or other treatmenttreatment


Before Obtaining Informed ConsentBefore Obtaining Informed Consent

Always verify the identity of the patient before Always verify the identity of the patient before obtaining informed consent. obtaining informed consent.

The physician must explain the informed The physician must explain the informed consent form to the patient. The medical consent form to the patient. The medical assistant can witness the patient’s signature, assistant can witness the patient’s signature, but must not be the one to explain the risks, but must not be the one to explain the risks, benefits, alternate procedures, etc.benefits, alternate procedures, etc.

This is the responsibility of the physician. This is the responsibility of the physician.


Elements of Informed ConsentElements of Informed Consent

Patient diagnosis, if knownPatient diagnosis, if known Nature and purpose of a proposed treatment or Nature and purpose of a proposed treatment or

procedureprocedure Risks and benefits of a proposed treatment or Risks and benefits of a proposed treatment or

procedureprocedure Alternative treatments or proceduresAlternative treatments or procedures Risks and benefits of alternative treatments or Risks and benefits of alternative treatments or

proceduresprocedures Risks and benefits of not receiving any Risks and benefits of not receiving any

treatments or procedurestreatments or procedures


Emancipated MinorsEmancipated Minors

A minor may be proclaimed emancipated if he A minor may be proclaimed emancipated if he or she:or she: is married.is married. is in the armed forces.is in the armed forces. is living separate and apart from parents oris living separate and apart from parents or legal guardian. legal guardian. is self-supporting.is self-supporting.


Statute of LimitationsStatute of Limitations

The statute of limitations is the period of time The statute of limitations is the period of time after which a lawsuit cannot be filed.after which a lawsuit cannot be filed.

Most states have a 2-year statute.Most states have a 2-year statute. In some instances, the statute may be extended In some instances, the statute may be extended

because of a delay in the discovery of an injury.because of a delay in the discovery of an injury.


ConfidentialityConfidentialityConfidentiality is the most important trust that the Confidentiality is the most important trust that the patient places in the hands of the physician. patient places in the hands of the physician. Breach of patient confidentiality is grounds for Breach of patient confidentiality is grounds for immediate dismissal.immediate dismissal.


Legal DisclosuresLegal Disclosures

Physicians must report certain statistics.Physicians must report certain statistics.

BirthsBirths DeathsDeaths Injuries as a result of violenceInjuries as a result of violence Accidental and/or suspicious deathsAccidental and/or suspicious deaths Sexually transmitted diseasesSexually transmitted diseases Child and/or elder abuseChild and/or elder abuse


Patient Self-Determination ActPatient Self-Determination Act

This act requires healthcare facilities to develop This act requires healthcare facilities to develop and maintain written procedures so that patients and maintain written procedures so that patients receive information about:receive information about: living wills.living wills. durable powers of attorney.durable powers of attorney. advance directives.advance directives.


Patient’s Bill of RightsPatient’s Bill of Rights

Goals:Goals: Strengthen consumer confidence by ensuring Strengthen consumer confidence by ensuring

the healthcare system is fair and responsive to the healthcare system is fair and responsive to consumer needsconsumer needs

Reaffirm the importance of a strong relationship Reaffirm the importance of a strong relationship between patients and healthcare providersbetween patients and healthcare providers

Reaffirm the critical role consumers play in Reaffirm the critical role consumers play in safeguarding their healthsafeguarding their health


Controlled Substances ActControlled Substances Act

Enforced by DEAEnforced by DEA Regulates writing, telephoning, and refilling of Regulates writing, telephoning, and refilling of

prescriptionsprescriptions Rules vary depending on the schedule under Rules vary depending on the schedule under

which the drug is classifiedwhich the drug is classified


Drug SchedulesDrug Schedules

Schedule ISchedule IHighly addictiveHighly addictive

Schedule IISchedule IIHigh abuse potentialHigh abuse potential

Schedule IIISchedule IIILower abuse potentialLower abuse potential

Schedule IVSchedule IVStill lower abuse potentialStill lower abuse potential

Schedule VSchedule VLowest abuse potential but still warrants controlLowest abuse potential but still warrants control


Uniform Anatomical Gift ActUniform Anatomical Gift Act

Basic ProvisionsBasic Provisions Any person of sound mind who is 18 years of Any person of sound mind who is 18 years of

age or older can give all or part of his or her age or older can give all or part of his or her body after death for research, transplantation, body after death for research, transplantation, or placement in a tissue bank.or placement in a tissue bank.

A donor’s valid statement of gift is paramount to A donor’s valid statement of gift is paramount to the rights of others unless state law intercedes.the rights of others unless state law intercedes.

If a donor has not indicated an intent to donate, If a donor has not indicated an intent to donate, survivors may do so in a specified order of survivors may do so in a specified order of priority.priority.


Health Insurance Portability and Health Insurance Portability and Accountability Act (HIPAA)Accountability Act (HIPAA)

ProvisionsProvisions

Title I—Insurance ReformTitle I—Insurance Reform

Title II—Administration SimplificationTitle II—Administration Simplification

The law provides for security and confidentiality The law provides for security and confidentiality guarantees for the individual patient, emphasizing guarantees for the individual patient, emphasizing patient privacy.patient privacy.


Benefits of HIPAABenefits of HIPAA

Lower administrative costsLower administrative costs Increased accuracy of dataIncreased accuracy of data Increased patient and consumer satisfactionIncreased patient and consumer satisfaction Reduced revenue cycle timeReduced revenue cycle time Improved financial managementImproved financial management


Occupational Safety and Health Occupational Safety and Health Administration (OSHA)Administration (OSHA)

The General Duty Clause states that a workplace The General Duty Clause states that a workplace must be free of any hazard that might cause must be free of any hazard that might cause serious injury or death.serious injury or death.


OSHA Training Must Include:OSHA Training Must Include:

Accessibility of the regulatory text of the Accessibility of the regulatory text of the standard and explanation of its contentsstandard and explanation of its contents

General discussion of blood-borne diseases General discussion of blood-borne diseases and their transmissionand their transmission

Universal precautions and body substance Universal precautions and body substance isolationisolation

Exposure Control PlanExposure Control Plan Engineering and Work Practice controlsEngineering and Work Practice controls Signs, labels, color-codingSigns, labels, color-coding


OSHA Training Must Include:OSHA Training Must Include:

Personal protective equipmentPersonal protective equipment Hepatitis B vaccinationHepatitis B vaccination Response to emergencies involving blood and body Response to emergencies involving blood and body

fluidsfluids Potential sources of infectionPotential sources of infection Written schedules for cleaningWritten schedules for cleaning Handling of contaminated laundryHandling of contaminated laundry How to handle exposures and spillsHow to handle exposures and spills MSDS SheetsMSDS Sheets Postexposure follow-upPostexposure follow-up


Emergency PreparednessEmergency Preparedness

OSHA requires an Emergency Action Plan for OSHA requires an Emergency Action Plan for most healthcare facilitiesmost healthcare facilities


Emergency Action Plans Should Emergency Action Plans Should Include What to Do in an EmergencyInclude What to Do in an Emergency

Fire prevention and action to take during a Fire prevention and action to take during a firefire

Natural and/or weather disasters, such as Natural and/or weather disasters, such as hurricanes, tornadoes, floodshurricanes, tornadoes, floods

Chain of command during emergencyChain of command during emergency Notification and accounting for employeesNotification and accounting for employees CrimeCrime Bomb threatBomb threat Terrorist activityTerrorist activity


Clinical Laboratory Improvement Clinical Laboratory Improvement Amendments (CLIA)Amendments (CLIA)

CLIA regulations set the minimum standard for CLIA regulations set the minimum standard for laboratory practice and quality. laboratory practice and quality.

A set of minimum standards for laboratories was A set of minimum standards for laboratories was established and involved quality improvement in established and involved quality improvement in testing procedures.testing procedures.


Americans with Disabilities ActAmericans with Disabilities Act

The intent is to eliminate discrimination against The intent is to eliminate discrimination against individuals with disabilities. The law requires that individuals with disabilities. The law requires that public medical facilities must allow persons with public medical facilities must allow persons with disabilities to easily and safely:disabilities to easily and safely: Reach door handles for opening and closingReach door handles for opening and closing Enter and exit buildingsEnter and exit buildings Move through doors and hallwaysMove through doors and hallways Use drinking fountains, phones, and restroomsUse drinking fountains, phones, and restrooms Move from floor to floorMove from floor to floor Do everything that the general public is able Do everything that the general public is able to do to do


Medical Practice ActsMedical Practice Acts

Purpose:Purpose: To define what is included in the practice of To define what is included in the practice of

medicine within each statemedicine within each state To govern the methods and requirements of To govern the methods and requirements of

licensurelicensure To establish the grounds for suspension or To establish the grounds for suspension or

revocation of licenserevocation of license


Licensure MethodsLicensure Methods

The license to practice medicine or chiropractic is The license to practice medicine or chiropractic is granted by a state board. Licensure may be granted by a state board. Licensure may be accomplished by:accomplished by: ExaminationExamination ReciprocityReciprocity EndorsementEndorsement


Revocation or Suspension of License Revocation or Suspension of License to Practice Medicineto Practice Medicine

Conviction of a crimeConviction of a crime Unprofessional conductUnprofessional conduct Personal or professional incapacityPersonal or professional incapacity


Summary of ScenarioSummary of Scenario

Study the anatomy of a lawsuit to understand Study the anatomy of a lawsuit to understand the processthe process

Follow the law and all regulations that apply Follow the law and all regulations that apply to the physician’s officeto the physician’s office

Remember that trust between the patient and Remember that trust between the patient and the physician and staff is a deterrent to the physician and staff is a deterrent to litigationlitigation

Question noncompliance and assist in Question noncompliance and assist in making the office completely compliantmaking the office completely compliant


Closing CommentsClosing Comments

The medical assistant plays an important role in The medical assistant plays an important role in avoiding legal claims against the practice. The avoiding legal claims against the practice. The medical assistant must:medical assistant must:

Follow confidentiality regulations and proceduresFollow confidentiality regulations and procedures Put patients first and see to their needsPut patients first and see to their needs Use discretion in talking about patients in open Use discretion in talking about patients in open

areasareas Keep accurate medical recordsKeep accurate medical records Make certain that all equipment functions properlyMake certain that all equipment functions properly Be compassionate and caringBe compassionate and caring

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