AMA 102 Legal Concepts

1. AMA 102 Legal Concepts

2. Sources of Law • U.S. Constitution • Legislative branch; Congress • Judicial branch; U.S. Supreme Court • Executive branch; President

3. Statutory Law • Created by Congressional and state legislative bodies • Published in statutes known as codes • Broad scope subject only to constitutional limitations • Direct social effect through the political process

4. Administrative Law • A type or extension of statutory/legislative law • Given power to enact regulations, have force of law • Examples: Internal Revenue Service (IRS), Federal Trade Commission (FTC), state medical boards, Medicare, Drug Enforcement Agency (DEA)

5. Common Law • Created by judicial branch through decisions in cases decided by courts • Diffuse; rules found in fact, patterns, and decisions of prior cases • Narrow in scope; limited to actual cases • Indirect social effect; judges somewhat insulated from political pressure

6. Civil Law • Court actions between private parties, corporations, government bodies, or other organizations • Compensation sought usually monetary • Recovery of private rights • Plaintiff: Party bringing action • Defendant: Person accused

7. Criminal Law • Court actions brought against individual(s) or groups of people accused of committing a crime • Punishment, usually imprisonment and/or fine • Recovery of rights of society

8. Crime Defined • Felony • A serious crime such as murder, assault, rape • The punishment is usually severe • Misdemeanor • Less serious than a felony • Disorderly conduct, thefts of small amounts

9. Controlled Substances Act • DEA governed, administrative law • Regulates addicting medications • Greatest potential for abuse, dependence • Five schedules from most addicting to least • Rules to administer, dispense, or prescribe • Registration every 3 years • Record keeping • Inventory • Security

10. Subpoenas • An order to appear in court under penalty for failure to do so • Subpoena duces tecum • Court order requiring a witness to appear and bring certain records or tangible items to a trial or deposition • Expert Witness • Qualified to testify to professional standard of care; reputable, honest, impartial • Essential when subject is beyond understanding of laypersons • Testifies what they see, hear, know to be a fact • Entitled to a fee

11. Medical Practice Act • State statute that defines practice of medicine • Describes methods of licensure • Sets guidelines for suspension or revocation of license

12. Professional Liability • Criminal liability or malfeasance • Commission of unlawful act • Civil liability or misfeasance • Improper performance resulting in injury to another • Nonfeasance • Failure to perform an act when there is a duty to do so

13. Standard of Care • Requires physicians to use the ordinary, reasonable skill, experience, and knowledge commonly used by other reputable physicians when caring for clients

14. HIPAA Passed by Congress in 1996 • Requires standardized, electronic client data • Created unique health identifiers for clients and practitioners • Created security standards to protect confidentiality of client data

15. Confidentiality • Any communication between client and physician must be kept private • Share with other professionals on a “need to know for client’s care” basis • Privilege belongs to the client • Special consideration for clients with HIV/AIDS

16. Contract • Agreement between two or more competent persons upon consideration or payment to do or not to do a task that is legal • Expressed • Implied • Abandonment • Physicians are liable if they abandon client • Prevention: Formally withdraw from a case • Breach of Contract • One party fails to satisfy the contract • Is cause for litigation

17. Torts • Private or civil wrongs • Wrongful acts committed against persons that cause harm to the persons • Damage to client, proximately caused by conduct of physician that falls below the standard of care

18. Professional Negligence • Failure to perform professional duties according to accepted standard of care • Performing act reasonable, prudent physician would not perform OR failure to perform act that reasonable, prudent physician would perform • Same as malpractice

19. Four Ds of Negligence • Duty • Derelict • Direct Cause • Damages Res Ipsa Loquitur • A Latin phrase meaning, “The thing speaks for itself” • A doctrine of negligence law

20. Respondeat Superior • Legal doctrine • Literally means, “Let the master answer” • Employer is responsible for the actions of his/her employees

21. Risk Management • Prevention within the health care setting • Prevention with clients

22. Communicable/Notifiable Diseases • Concern for public welfare • Laws vary among states • Health departments publish list • Health professionals must report Notifiable/Reportable Injuries • Concerns public welfare • Gun or knife wounds are examples • Child, Elder Abuse, Domestic Violence

23. Child Abuse • All states, District of Columbia mandate reporting of child abuse • Reporting: Who, what, when • Civil liability of reporter

24. Intimate Partner Violence (IPV) • Violence between • Spouse/former spouse • Current or former boyfriend/girlfriend • Current or former same sex or heterosexual intimate partners

25. Elder Abuse • Intentional or unintentional physical or psychological harm to someone 60 years or older • Commonly occurs in the home, nursing home, or other institutions

26. Remember… • Vulnerability of survivor to future harm, assault • Respect survivor’s right not to report if permissible by law • Survivor and abuser need professional care

27. Evidence • Carefully document in medical records • Documentation must be clear, concise, complete, and in order • Chain of evidence cannot be broken

28. Substance Abuse • Commonplace in society today • Health professionals are especially vulnerable to substance abuse • Follow HIPAA and confidentiality guidelines • Keep prescription orders secure • Have frank, open discussion with clients

29. Good Samaritan Laws • Purpose is to encourage health professionals to render first aid to victims without liability for negligence • Exist in all 50 states • May be poorly defined • Do not protect persons who perform outside their scope of practice

30. Consent • The affirmation by a client to allow touching, examination, and/or treatment by medically authorized personnel Types of Consent • Informed • Uninformed

31. Doctrine of Informed Consent • Law requiring client to understand nature of illness and be told: • What the procedure is and how it is performed • Possible risks involved and expected results • Any alternative procedures/treatments and risks • Results if no treatment is given

32. Problems in Consent • Minors • Mature minors • Emancipated minors • Foster children • Mentally incompetent clients • Language barrier/interpreter

33. Exceptions to Informed Consent • Unique to each state • Need not disclose • risks commonly known • if knowledge might be detrimental to clients • if client asks to remain ignorant

34. Implementing Consent • Consent forms must be: • Understandable • Protect client’s rights • Be broad but specific • Signed with expiration date • Witness verifies that signature is that of the client

35. Purpose of Medical Records • Base for managing client’s care • Provide inter/intraoffice communication • Document health from birth to death • Allows patterns to surface • Serve as legal basis for litigation • Provide clinical data for education and research

36. Problem Oriented Medical Record Subjective Objective Assessment Plan Education Response POMR & SOAP/SOAPER

37. HIPAA--PHI • Protected health information (PHI) in electronic medical records • Notice of Privacy Practices (NPP) • Restrict usage of PHI • Request confidential communication • Inspect and obtain copy of PHI • Request amendment of PHI • Receive an accounting of PHI disclosure

38. Correcting Medical Records • Handwritten errors • Draw line through error w/red pen • Write “corr,” sign initials, date, write in correction • Never use whiteout, it is illegal • Never alter a medical record, just add corrections or additions

39. Correcting Medical Records • Electronic errors • Use word processing tracking device to draw line through error • Place correction after information lined out • Word “correction” or “corr” is indicated • Place initials and date correction is made

40. Electronic Medical Records • Computer safety and security required • Robust firewalls, antivirus installed • Password protected, changed regularly • Computer limits access to invalid attempts • Computer screens out of view • Screensaver prevents unwanted viewer’s access

41. Email • Automated replies to acknowledge receipt • Explain email privacy risks to clients • Avoid email that requires urgent reply • Email goes in clients records • Do not forward without permission • Establish regular time to read and respond to email

42. Fax • Use only when more secure measures is not appropriate • Keep machines in restricted-access, secure areas • Verify fax recipient, number, machine location • Include statement for receiving fax in error

43. Medical Records • Ownership of records • Right to privacy of record release • Storage of records • Retention of records