Learning Objectives

1. Chapter 5 Learning Objectives • Define, spell & pronounce the terms listed in vocabulary. • Compare criminal and civil law as they apply to the practicing medical assistant; also discuss contract law • Summarize the anatomy of a medical professional liability lawsuit & explain the four essential elements of a valid contract • Discuss the various parts of a medical professional liability lawsuit • Discuss the advantages of mediation & arbitration • Do the following related to medical liability & negligence: • Differentiated malfeasance, misfeasance, & nonfeasance • Explain the four Ds of negligence • Define the types of damages • Discuss risk management & describe liability, malpractice, & personal injury insurances, including the importance of informed consent. • Define statues of limitation & confidentiality • Discuss compliance reporting, the Patient Self-Determination Act, the Uniform Anatomical Gift Act, & the Patients’ Bill of Rights. • Describe the important features of the ADAA & GINA Acts. • Explain the components of the Health Insurance Portability & Accountability Act (HIPAA) • Identify HITECH & its impact an electronic transmission of patient records. • Summarize the primary features of the Affordable Care Act

2. Medicine & Law Page 53 - 75

3. Page 55 Medicine & Law • In today’s litigious society, medical assistants, in addition to providers & other staff members, must take steps to protect themselves from lawsuits. • Although the wording of statutes & regulations often is long & complicated, medical assistants must stay abreast of the rules governing medical facilities & do everything possible to remain in compliance with the standards & regulations for all organizations that oversee the medical industry.

4. Page 55 Medicine & Law: Cont. • In healthcare, the physician-employer is legally responsible for the actions of his or her employees when they are performing duties as outlined in their job descriptions. • Medical assistants guilty of negligence are liable for their own actions, but the injured party generally sues the provider because the chance of collecting damages is greater. However, medical assistants, regardless of their financial worth, can be held liable for negligent act

5. Page 55 Jurisprudence & the Classifications of Law • Law is the system by which society gives order to our lives. • Acts = laws enacted by Congress • Statutes = laws enacted by state legislatures. • Ordinances = Local governments create & enact. • Much of our law is based on previous judge & jury decisions, which are called precedents. • The two basic categories of jurisprudence are criminal law & civil law.

6. Page 55 Jurisprudence & the Classifications of Law: Cont. Criminal Law • Criminal law governs violations of the law punishable as offenses against the state or the federal government. Such offenses involve the welfare & safety of the public as a whole, rather than of one individual. A medical assistant can be prosecuted for criminal acts such as assault & battery, fraud, & abuse. Criminal offenses are classified into three basic categories: misdemeanors, felonies, & treason.

7. Page 55 Jurisprudence & the Classifications of Law: Cont. Misdemeanors • Misdemeanor = A minor crime • Typical = petty theft, disturbing the peace, simple assault & battery, & drunk driving without injury to others. • Tried = lowest local court, such as municipal, police, or justice courts. • Punishment = payment of a fine, probation, community service, & restitution, may spend up to a year in jail

8. Page 55 Jurisprudence & the Classifications of Law: Cont. Felonies • Felony = a major crime • Typical: murder, rape, or burglary. • Punishment = imprisonment for 1 or more years or even death for more serious crimes. • Felonies often are divided into subgroups, or degrees, such as first degree, second degree, & third degree. A first-degree offense is normally the most serious.

9. Page 55 Jurisprudence & the Classifications of Law: Cont. Civil Law • Civil law is concerned with acts that are not criminal in nature but involve relationships with other individuals, organizations, or government agencies. • Many types of civil law exist to address numerous issues. • The three that most directly affect the medical profession are tort law, contract law & administrative law.

10. Page 55 Jurisprudence & the Classifications of Law: Cont. Tort Law • A defamation case would be judged under tort law. • Defamation = an intentional false statement, either written or spoken, that harms a person’s reputation, diminishes the respect in which a person is held, or creates negative opinions toward another person. • Libel (written) & slander (oral) are acts that fall into the category of defamation.

11. Page 55 Jurisprudence & the Classifications of Law: Cont. • When a person is liable for an act, he or she is obligated or responsible according to the law. Professional & personal injuries are types of torts, meaning that a person or group has injured someone or something else. Medical professional liability, or medical malpractice, falls into this category. Providers carry professional liability insurance to help guard them from liability costs. • Remember, the terms libel & liable are defined differently, although they sound much the same.

12. Page 55 Jurisprudence & the Classifications of Law: Cont. Contract Law • Contract = an agreement that creates an obligation. • A contract does not have to be formalized in writing to be binding on the parties involved. Oral contracts also are valid in many states in most situations. For example, an oral contract is created when the medical assistant makes an appointment for a new patient visit.

13. Page 56 Anatomy of a Medical Professional Liability Lawsuit • A medical liability case often stems from a breach of trust or miscommunication between the provider & the patient. These cases fall into the category of tort law. Even when the provider has made an error, often the level of trust between the provider & patient determines whether a lawsuit is pursued. First, the provider-patient relationship must be formed. However, before this relationship can be discussed, you must understand the requirements for a valid, enforceable contract.

14. Page 56 Anatomy of a Medical Professional Liability Lawsuit: Cont. What Constitutes a Valid Contract? • A valid legal contract has four essential elements: agreement, legally, competence, & consideration. • The two parties must have a mutual understanding & agreement on the intent of the contract • The contract must involve something that is legal • Both parties must be legally competent • Consideration must be involved; consideration is an exchange of something of value (e.g., money) for the provider’s time.

15. Page 56 Anatomy of a Medical Professional Liability Lawsuit: Cont. • The provider-patient relationship is generally held by courts to be a contractual relationship that is the result of three steps: • The provider invites an offer by establishing availability (e.g., posting office hours). • The patient accepts the appointment & makes an offer by arriving for or requesting treatment • The provider accepts the patient’s offer by examining the patient & beginning treatment.

16. Page 57 Anatomy of a Medical Professional Liability Lawsuit: Cont. • After the provider-patient relationship has been established, the provider is obligated to attend the patient as long as attention is required, unless the provider or patient terminates the contract. • When a provider terminates the contract, the patient must be given notice of the provider’s intentions so that the patient has sufficient time to arrange for another healthcare provider.

17. Page 57 Anatomy of a Medical Professional Liability Lawsuit: Cont. • The provider must write a letter of withdrawal from medical care of the patient, & it should be delivered by certified mail, return receipt requested. • A copy of the letter & the return receipt should be included in the patient’s health record. • Reasonable time should be allowed for the patient to find other medical care.

18. Page 57 Anatomy of a Medical Professional Liability Lawsuit: Cont. • To protect the provider against a lawsuit for abandonment, the details of the circumstances under which the provider is withdrawing from the case should be included in the patient’s health’s record. • To specify the withdrawal of care, a letter should be sent to the patient that includes a brief reason for the withdrawal of care, such as missing appointments or falling to comply with treatment orders.

19. Page 57 Anatomy of a Medical Professional Liability Lawsuit: Cont. • The letter should state the following: • That professional care is being discontinued as of a particular date. • That the provider will supply copies of the patient’s records to another provider on request • That the patient should seek the attention of another provider as soon as possible

20. Page 57 Anatomy of a Medical Professional Liability Lawsuit: Cont. Breach of Contract • A breach of contract occurs if there is a failure to preform any term of a contract, written or oral, without a legitimate legal excuse. For example, if a plastic surgeon prepares an estimate for services & it states that the fee will be no more than $9,000, but then charges the patient 10,200, a breach of contract exists. Although most providers state that the document is just an estimate, this particular provider stated a clear amount that the surgery cost would not exceed.

21. Page 57 Medical Professional Liability Lawsuit • Medical professional liability suits are far from rare, & every provider faces the probability of being sued at least once during his or here career. • A medical assistant may be involved in preparing materials for court & scheduling or participating in depositions. • The best advice for a medical assistant in this position is to remember to tell the truth.

22. Page 57 Medical Professional Liability Lawsuit: Cont. Interrogatories • Before the trial, the provider may be asked to complete an interrogatory, which is a list of questions from each party to the other in the lawsuit. Answers to the interrogatory must be provided within a specified time, & answers are considered to be given under oath. Only the parties named in the lawsuit may be questioned through interrogatories.

23. Page 57 Medical Professional Liability Lawsuit: Cont. Depositions • Deposition = an oral testimony of a party or witness in a civil or criminal proceeding take before trail. It is taken in the presence of a court reporter & under oath. The transcribed disposition is sent to the witness for review, & the witness has the right to request changes or corrections in the document before it goes into the record. They are a discovery tool.

24. Page 57 Medical Professional Liability Lawsuit: Cont. • A witness who is not a party to the lawsuit may be summoned by subpoena for a deposition. If you are called to be deposed in a case, the attorney will prepare you for questions from opposing attorneys & will be present during the process. • Discovery = the pretrial disclosure of the pertinent facts or documents by one or both parties to a legal action or proceeding.

25. Page 57 Medical Professional Liability Lawsuit: Cont. Subpoenas • Subpoena = a document issued by a court that requires a person to be present at a specific time & place to testify as a witness in a lawsuit, either in a court proceeding or in a deposition. • Subpoena duces tecum = a court order to produce identified documents or records. This type of subpoena does not require the person named in it to give testimony at a deposition or trail.

26. Page 57 Medical Professional Liability Lawsuit: Cont. • In medical practice, a subpoena duces tecum typically is ordered for patient records needed in a malpractice suit. The facility may charge a fee for the time spent in compiling the records & for photocopying charges, but this fee must be requested at the time the subpoena duces tecum is served or it is considered to be waived. Original records should never be released under any circumstances.

27. Page 57 Medical Professional Liability Lawsuit: Cont. • Copies can be released in advance of the court date. Release only the information requested in the subpoena & provide only information that originated in the provider’s office. Do not provide records sent from previous or consulting providers. Those records must be subpoenaed separately from the originating office. • Before responding to a subpoena, make sure it is valid.

28. Page 58 Medical Professional Liability Lawsuit: Cont. • General rules can be used to judge the validity of a subpoena: • A subpoena issued in one state court generally is not valid in another state. • A subpoena issued by a federal court in one state generally is not valid in another state unless a federal statute authorizes nationwide service of process.

29. Page 58 Medical Professional Liability Lawsuit: Cont. • Any duly authorized law officer may execute a valid subpoena anywhere in the same state. The officer notifies the issuing court once the subpoena has been served. • Generally, the person or entity subpoenaed has 21 days to respond, but this period can differ from place to place. • A subpoena duces tecum should be filed no less than 15 days before a trial. One served less than 15 days before a trail should not be honored.

30. Page 58 Medical Professional Liability Lawsuit: Cont. • Read the subpoena carefully to determine exactly what records are requested. • Never copy records required in a subpoena without bringing the matter to the attention of the provider or office manager, or both. • It also is advisable to keep a log of subpoena served to the office, what records were involved, & the disposition of the request, including when the records were presented to the court.

31. Page 58 Medical Professional Liability Lawsuit: Cont. Inside the Courtroom • Knowing the role of each person in a court law can be helpful. • The person or body bringing the lawsuit to court is referred to by different terms, depending on the type of case. • In a criminal court, the government brings the case & is represented by a prosecutor • In civil court, the person or group bringing the case to court is called the plaintiff

32. Page 58 Medical Professional Liability Lawsuit: Cont. • The opposite party is called the defendant, or respondent. • A judge presides over the case, giving instructions concerning the law to the jury, if a jury is present. • If no jury is present, the judge decides the case; this is called a bench trial.

33. Page 58 Medical Professional Liability Lawsuit: Cont. Burden of Proof • In a criminal case the burden of proof is on the prosecution, which must prove guilt beyond any reasonable doubt. • Reasonable doubt = defined as the level of certainty a juror must have to find a defendant guilty of a crime. It is real doubt, based on reason & common sense after careful & impartial consideration of all the evidence, or lack of evidence, in a case.

34. Page 58 Medical Professional Liability Lawsuit: Cont. • Civil cases must be proven by a preponderance of the evidence. • This means that the greater weight of evidence must point to the defendant or respondent as being responsible for the act involved in the case.

35. Page 58 Medical Professional Liability Lawsuit: Cont. Outcome of the Case • Once both sides have presented their case to the judge or jury, they usually are given the opportunity to present a final summation of their case. The jury then retires to consider the verdict. This can take minutes, hours, days, or weeks. • After the jury reaches a decision, the judge may enter it as a final verdict or may disregard it if the evidence does not support the jury’s decision.

36. Page 58 Mediation & Arbitration • Mediation & arbitration are two examples of alternative dispute resolutions that share the goal of avoiding litigation in court. • Mediation = a neutral third party, the mediator, helps those involved in a dispute solve their own problems. The mediator facilities the parties’ decisions by helping them communicated & move through the more difficult parts of their differences in search of a compromise that both parties can live with. • Once the parties reach a resolution, a final settlement agreement is signed.

37. Page 59 Mediation & Arbitration: Cont. • Arbitration is an alternative to trail in which a third party (an arbitrator) is chosen to hear evidence & make a decision about a case. The patient & the provider both have the opportunity to agree on who will arbitrate the case so that one side is not favored over the other. The arbitrator renders a legally binding decision based on very specific rules. • Many providers & attorneys see mediation & arbitration as ways to solve the crisis of litigation in this country.

38. Page 59 Medical Liability & Negligence • When a patient is injured as a result of a provider’s negligence, the patient may initiate a malpractice lawsuit to recover financial damage. • However, experience has shown that the incidence of malpractice claims is directly related to the personal relationship & trust that exist between the provider & the patient. • Deterioration of the provider-patient relationship is a common reason patients sue providers for malpractice, even when the patient has sustained no real injury.

39. Page 59 Medical Liability & Negligence: Cont. • medical malpractice = liability governed by the law of torts. It occurs when a provider treats a patient in a way that does not meet the expected medical standards of care in the same medical community & because of this, the patient suffers harm. • medical standard of care = considered the type & level of care that a reasonably competent healthcare professional, in the same field & with similar training, would have provided in the same situation.

40. Page 59 Medical Liability & Negligence: Cont. • To understand medical malpractice, the term negligence first must be understood. • Negligence = implies inattention to one’s duty or business, or a lack of necessary diligence or care. • In medicine, negligence = the performance of an act that falls below the standards of behavior established by law, or the failure to perform an act that is reasonable & prudent provider would perform in a similar situation.

41. Page 59 Medical Liability & Negligence: Cont. • The standard of prudent care & conduct is not defined by law; it is left to the determination of a judge or jury, usually with the help of expert witnesses. • Expert witnesses = members of the profession involved (medicine). To be considered an expert witness, the individual has knowledge beyond that of the ordinary lay person, which enables him or her to give testimony that requires expertise to understand.

42. Page 59 Medical Liability & Negligence: Cont. • Professional negligence in medicine falls into one of three general classifications: • Malfeasance: Intentionally doing something either dishonest or illegal. • Misfeasance: Performing an act that is legal but not properly performed. • Nonfeasance: Failure to perform an act that should have been performed. • Res ipsa loquitur: presumes negligence if the individual or group being sued had exclusive control over whatever caused the injury, even though there is no specific evidence of negligence.

43. Page 59 Medical Liability & Negligence The Four Ds of Negligence • Negligence is not presumed; it must be proven. • The Committee on Medicolegal Problems of the American Medical Association (AMA) has determined that patients must present evidence of four elements before negligence has been proven.

44. Page 59 Medical Liability & Negligence • These elements have become known as the four Ds of negligence: • Duty: Duty exists when the provider-patient relationship has been established. Providers have a duty to provide the most accurate diagnosis & care & the duty to inform patients of potential problems they observe. • Dereliction: Dereliction refers to the failure of a provider to perform his or her duty; there must be proof that the provider somehow neglected the duty.

45. Page 59 Medical Liability & Negligence • Direct cause: The patient must prove that the provider was aware of potential risks but did not inform the patient & as a result the patient was injured • Damage: A physical, metal, emotional, or financial harm caused by the breach of duty.

46. Page 60 Medical Liability & Negligence Types of Damages • Five types of damages are common in tort cases: • Nominal damages = small awards that are token compensations for the invasion of a legal right in which no actual injury was suffered. • Punitive damages (exemplary damages) = designed to punish the party who committed the wrong in such a way so as to deter repetition of the act.

47. Page 60 Medical Liability & Negligence • Compensatory damages = designed to compensate for any actual damages caused by the negligent person. • General damages = compensation for pain & suffering, for loss of a bodily member or faculty, for disfigurement, or for other similar direct losses or injuries. • Special damages = awarded for injuries or losses that are not a necessary consequence of the provider’s negligent act or omission.

48. Page 60 Risk Management Practices • Risk management practices are a combination of different approaches in the healthcare facility that reduces the likelihood that either an individual healthcare professional or the healthcare facility will be sued. • The primary focus should be on delivering quality, safe patient care, but a secondary goal is to avoid the potential financial consequences of a malpractice suit. Each facility should have a plan for risk management that covers patient-specific risks.

49. Page 60 Risk Management Practices: Cont. • These plans might include the following features: • Adequately trained providers & staff members. • Open lines of communication among staff members regarding potential risky practices • Specific policies on how expired prescriptions are refilled to prevent prescription medication abuse. • Tracking missed appointments; implementing systems to following-up with patients who miss appointments but fail to reschedule.

50. Page 60 Risk Management Practices: Cont. • Policies on patient test result; making sure patients follow up with ordered diagnostic procedures; making sure the results are reviewed by the attending provider, & the patient is contacted with results. • Communication issues with patients • Making sure that the facility is safe for patient use • Documentation procedures are strictly followed; all pertinent information is documented in the correct format in the patient’s record.