Medicine and Law

1. Medicine and Law Chapter 7

2. Introduction The study of law and medicine provokes interesting case studies and complex decisions. Ethics and law go hand in hand when applied to the medical profession.

3. How can the medical assistant help to comply with legal regulations in the medical office? How can new graduates learn about the laws that affect them in their state? What are some ways that medical professional liability suits can be avoided? What should the medical assistant do if the employer is not in compliance with legal regulations? Legal Questions

4. The types and categories of law The law as it relates to medical professional liability The elements of a valid contract The court process Types of negligence Issues regarding consent Laws affecting medical practice This chapter will examine:

5. Types of Laws Act—passed by Congress Statutes—enacted by state legislatures Ordinances—created and enacted by local governments Precedents—previous judicial decisions that influence a current ruling

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

7. Basic Categories of Criminal Law Misdemeanors Minor crimes, punishable by a fine or imprisonment in a city or county jail for 1 year or less Vary from state to state Often classified as class A, class B, and class C depending on the seriousness of the crime

8. Basic Categories of Criminal Law Felonies Major crimes, such as murder, rape, and burglary Punishable by a more stringent sentence than are misdemeanors Can receive probation, imprisonment for 1 year or more Divided into first degree, second degree, and third degree

9. Basic Categories of Criminal Law Treason Most serious crime against the United States Attempting to overthrow the government

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

11. Basic Categories of Civil Law Tort Law Provides remedies for individuals who have been harmed by the wrongful acts of others

12. Proving Breach of Tort Law Four Elements Legal duty to act was present Duty to act was breached Failure to act caused injury or damage Injury or damage was a result of the breach of duty Note: Medical professional liability falls into the category of tort law.

13. Basic Categories of Civil Law Contract Law Contracts are agreements that create an obligation. They can be oral or written to be binding.

14. Basic Categories of Civil Law Administrative Law Involves regulations set forth by governmental agencies. IRS, SSA, USCIS, and CMS are examples of agencies that use administrative law.

15. Anatomy of Medical Professional Liability Lawsuits Most medical professional liability lawsuits stem from a breach of trust between the physician and patient.

16. Valid Legal Contracts Four Essential Elements: Manifestation of assent Legal subject matter Legal capacity to enter into a contract Consideration

17. Physician-Patient Relationship The physician-patient relationship is considered contractual as a result of three events: Physician invites an offer by establishing availability. Patient accepts the invitation and arrives for treatment. Physician accepts the patient and begins treatment.

18. Implied Contract The physician will treat the patient using reasonable care. The physician possesses a degree of knowledge, skill, and judgment that is reasonably expected of any physician in the same area.

19. Protection against Abandonment Charges Notify a patient in writing if withdrawing from medical care, stating: Professional medical care is being discontinued Copies of medical records will be sent to another physician on request Patient should seek medical care immediately

20. Court Systems City Courts—Municipal Courts Usually deal with ordinance violations May issue search and arrest warrants Justice of the Peace Courts Share some responsibilities with city and/or municipal courts Often function as small claims courts

21. County Courts Handle misdemeanors and civil matters up to a certain monetary limit Have jurisdiction over matters that take place in specific counties

22. District Courts Unlimited jurisdiction in criminal and civil matters Highest state courts other than appellate courts The U.S. District Court handles federal civil and criminal matters

23. State Supreme Courts Most states have an Appellate Court for both criminal and civil matters. States also have Supreme Courts that handle a limited number of appellate cases.

24. U.S. Supreme Court Located in Washington, D.C.

25. Supreme Court Docket Eight thousand cases are on the docket each year. Eighty to 90 cases are chosen to be heard by the court.

26. Preparing for Court Telling the truth and being truthful in the answers given to the court avoids: Losing his or her credibility in the trial Being charged with perjury

27. Interrogatory An interrogatory is a list of questions from each party to the other in a lawsuit. Answers must be provided within a specific timeframe. Only parties named in lawsuit may be questioned.

28. Deposition A deposition is testimony taken from a party or witness to the litigation. It is not limited to the parties named in the lawsuit.

29. Subpoenas A subpoena is a writ or document commanding a person to appear in court under a penalty for failure to appear. Subpoena duces tecum is a legally binding request to appear in court and provide records or documents that pertain to a particular case.

30. Discovery Discovery is the pretrial disclosure of pertinent facts or documents by one or both parties to a legal action or proceeding. Also the process of uncovering facts in a lawsuit before court proceedings. Documentary evidence may include items such as a patient’s medical record, a letter, a laboratory result, and a photograph.

31. Preparing to Testify Review potential questions with the attorney. Clarify answers to provide accurate explanations. Make sure that accurate directions to the courthouse are handy. Always be on time. Dress conservatively in business attire. Review documents before the court date.

32. Testifying in Court Speak clearly and audibly. Answer all questions aloud. Be courteous to everyone. If the answer to a question is “I don’t know,” do not answer using any other phrase. Wait for judges to rule on objections before continuing testimony. Address the judge as “Your Honor.” Be professional at all times.

33. Roles in the Courtroom Plaintiff or Petitioner Person or group that initiates the lawsuit Defendant or Respondent Person accused of a crime or required to make answer in a legal action or suit Judge Presides over the courtroom Bailiff An officer of the court who keeps order at the request of a judge

34. Burden of Proof Criminal Cases: Beyond a reasonable doubt Reasonable doubt is defined as the level of certainty a juror must have to find a defendant guilty of a crime.

35. Burden of Proof Civil Cases: By a preponderance of the evidence Having a preponderance of the evidence means that there is a greater weight of evidence that points to the defendant or respondent as being responsible for the act involved in the case.

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

37. Arbitration Arbitration is an alternative to court trials that uses a third party to hear evidence in a case and make a decision. It is fairly common method for resolving legal disputes between physician and patient.

38. Medical Professional Liability Also known as medical malpractice Much more easily prevented than defended Commonly caused by a deterioration of the patient-physician contract

39. Negligence The performance of an act that a reasonable and prudent physician would not perform, or the failure to perform an act that a reasonable and prudent physician would perform. If the patient contributes to the worsening of his or her condition, he or she is guilty of contributory negligence.

40. Three Classifications of Negligence Malfeasance: The performance of an act that is wholly wrongful and unlawful. Misfeasance: The improper performance of a lawful act. Nonfeasance: The failure to perform an act that should have been performed.

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

42. Consent Implied: The patient extends his or her arm for an injection or phlebotomy Informed: Written consent for a surgical procedure or other treatment

43. Before Obtaining Informed Consent Always verify the identity of the patient before obtaining informed consent. The physician must explain the informed consent form to the patient. The medical assistant can witness the patient’s signature, but must not be the one to explain the risks, benefits, alternate procedures, etc. This is the responsibility of the physician.

44. Elements of Informed Consent Patient diagnosis, if known Nature and purpose of a proposed treatment or procedure Risks and benefits of a proposed treatment or procedure Alternative treatments or procedures Risks and benefits of alternative treatments or procedures Risks and benefits of not receiving any treatments or procedures

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

46. Statute of Limitations The statute of limitations is the period of time after which a lawsuit cannot be filed. Most states have a 2-year statute. In some instances, the statute may be extended because of a delay in the discovery of an injury.

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

48. Legal Disclosures Physicians must report certain statistics. Births Deaths Injuries as a result of violence Accidental and/or suspicious deaths Sexually transmitted diseases Child and/or elder abuse

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

50. Patient’s Bill of Rights Goals: Strengthen consumer confidence by ensuring the healthcare system is fair and responsive to consumer needs Reaffirm the importance of a strong relationship between patients and healthcare providers Reaffirm the critical role consumers play in safeguarding their health