Medico-Legal Aspects of Radiography

1. Medico-Legal Aspects of Radiography Rolly R. Reyes, BS, RT(R)

2. History and definition of law Types of Law Classification of Law Legal Torts Medico-Legal Doctrines Informed Consent Child Abuse Laws you should know about What we will cover:

3. �The sum total of all the rules and regulations that govern a society� Definition of Law

4. Based on the English court system �Adversary Proceedings� Confrontation between two parties �Plaintiff� �Defendant� Each side represented by someone who �supports� his cause Lawyer Proceedings take place in a neutral place Court History of American Law

5. Forum is neutral Specific rules are followed Certain conduct is prescribed Goal: Truth is defined Justice realized The Court

6. Schloendorf v. Society of New York Hospital Decision rendered by New York Court of Appeals (1914) Established principles of Informed Consent, and doctrine of respondeat superior �Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient's consent commits an assault for which he is liable in damages. This is true except in cases of emergency where the patient is unconscious and where it is necessary to operate before consent can be obtained.� History of Law

7. Constitutional Law Based on U.S. Constitution Administrative Law Law governing administrative agencies (government) Statutory Law �Written Law� Common (�Case� or �Precedent�) Law Based on court decisions, doctrines, and customs & usage Developed by judges through court decisions and similar legal bodies Types of Law (4)

8. Criminal (�Penal�) Law Relates to crime Rules that define prohibited conduct because [that conduct] is believed to threaten, harm, or otherwise damage the safety & welfare of the public. Punishment: Imprisonment & Fines Civil Law Legal rights and responsibilities (duties) of private citizens Punishment: Money awards Classification of Law (2)

9. �Legal or civil wrong committed by one person against the person or property of another person� Two (2) Types Intentional Negligence Legal Torts

10. Plaintiff must establish that the defendant intended to commit the specific wrong that has been alledged. Must be conscious performance of act to accomplish specific result, or where a reasonable person would have known the results of a particular act. Deliberate action Conscious action Plaintiff must show intent Intentional Tort of Misconduct

11. Assault Acting intentionally & voluntarily causing the reasonable apprehension of an immediate harmful or offensive contact Intent Apprehension Battery Intentionally & voluntarily bringing about an unconsented harmful or offensive contact with a person Involves actual contact Misconduct (types)

12. False Imprisonment Conscious restraint of freedom of another without proper authorization, priviledge, or consent In healthcare must be limited to, and in proportion with the procedure being performed. Based on �reasonableness� Misconduct (types)

13. Defamation of Character Slander � spoken Libel � written Must be written or spoken, and made to a person other than the plaintiff Invasion of Privacy Patient�s medical record (includes x-ray images) Freedom of Information Act (pt can access records) Covered by HIPAA Laws (PHI) Misconduct (types)

14. �Skill and learning commonly possessed by members of a particular profession.� In healthcare known as �Standard of Reasonable Care� Depends on specifics of situation Open to interpretation by judge & jury Standard of Care

15. �Doing something you should not have done� or �Not doing something that you should have done.� Negligent behavior or actions that cause harm to another person known as �malpractice.� Hippocratic Oath: �Do no harm� Tort of Negligence

16. Def: �A breach from the standard practice that is the proximate cause of a patient�s injury.� Elements of proof of negligence in a medical malpractice case include a deviation, or departure from acceptable standard of practice A negligent act committed by a professional person constitutes malpractice only if it involves negligence in the carrying out of his professional duties Medical Negligence = Malpractice

17. Criminal Malpractice Assault Battery Mercy Killing (�Angel of Death�) Civil Malpractice Practice falls below �Standard of Care� Ethical Malpractice Violations of professional ethics (e.g. ASRT Code of Ethics) Malpractice classifications

18. Duty of responsibility to patient owed Duty of responsibility is breached (broken) Damages (Injury or Death) Proximal (Direct) Cause Malpractice: Plaintiff must prove

19. In the United States everyone is considered innocent until �______ ______� in a court of law.

20. In the United States everyone is considered innocent until �proven guilty� in a court of law.

21. Plaintiff files complaint Defendant responds (�Answer�) �Discovery� Trial by judge and/or jury Jury decision Appeals process Civil Suit Steps (6)

22. A rule or principle of law, especially when established by precedent Can be invoked by either plaintiff or defendant Medico-Legal Doctrines

23. Respondeat superior �Let the master respond� Employer is liable for negligent acts of employees which occur when the employee is acting as an instrument of the employer. Employee-Employer relationship must exist Does not relieve practitioner of negligent behavior �Indemnification� Employer can recover awarded damages from its employee Medico-Legal Doctrines

24. The �Borrowed Servant� The common law principle that the employer of a borrowed employee, rather than the employee�s regular employer, is liable for the employee�s actions that occur while the employee is under the control of the temporary employer. Medico-Legal Doctrines

25. Res ipsa loquitur �The thing speaks for itself� Often invoked to cause the defendant to prove his actions were not negligent (accused my prove that he is innocent) The outcome is so obvious that the damage(s) can only have been caused by the defendant. e.g. sponges & instruments left inside patients, surgical outcomes (esp. plastic surgery) that didn�t turn out right, wrong medications administered to the patient. Medico-Legal Doctrines

26. Used by the defendant to prepare his case against the plaintiff. Contributory Negligence Duty and responsibility of patient to act prudently Defendant raises issue and offers evidence that the patient is guilty of contributing to their damages. Comparative Negligence Negligent acts of both Plaintiff and Defendant compared. Damages apportioned accordingly Defense Strategies

27. �Statue of Limitations� Period of time when Plaintiff knew, or should have known, or had reason to believe that he had a cause for legal action (suffered damages). Length of time specified by law �Discovery Rule� All information obtained during �Discovery Phase� must be shared with both Plaintiff and Defendant before trial. Defense Strategies

28. Financial compensation demanded by, or directed by a court to be paid to, a claimant as compensation for a financial loss or injury to person or property. Types (2) Nominal Token compensation Usually done to �make a point� Compensatory Compensation for �actual� damages Pain, suffering, loss of lime, lost wages, �punitive� Damages

29. Affirmation by patient to consent to have procedure performed Patient must have: Appropriate mental capacity Accepted elements of consent Been for lawful purpose Who can sign? Must be over age of majority Spouse Emancipated Minor Informed Consent

30. Authorization Clause Permits healthcare giver to perform procedure Disclosure Clause Explanation of procedure Risks � to include possibility of death Benefits of having procedure performed Alternatives Anesthesia Clause (if anesthesia to be given) Informed Consent must contain:

31. No guarantee clause Tissue Disposal Clause Patient Understanding Clause Had all questions answered Everything explained to patient Signature Clause Patient signature or mark Witness Informed Consent must contain:

32. The lack of a signed Informed Consent form constitutes medical malpractice! (Deviation from �Standard of Practice�)

33. �Abuse� vs �Neglect� Abuse: Positive action, very distinct, aggravated Neglect: Failing to do something you should Punishment Abuse: Child removed from family Neglect: DFS/DCWS work with family, counselling Child Abuse

34. Civil Liability California Supreme Court (1976) � Landeros v. Flood Sued ER physician (Flood) & hospital for malpractice because they had a duty to recognize battered child syndrome. Required by law to report suspected child abuse Immunity Provision Immunity does not apply for malicious reporting Not reporting suspected child abuse

35. Radiologic Technology Act (1974) Calif Code of Regulations (CCR) Title XVII Health Insurance Portability & Accountability Act (HIPAA) Passed 1996; became fully effective 2003 Privacy of patient information (PHI) 10 CFR 20 � NRC (1994) �Standards for Protection Against Radiation� Laws you should know about:

36. Mammographic Quality Standards Act (1992, renewed 2003) � �MQSA� Patient-Consumer Radiation Health & Safety Act (1981) National educational & credentialing standards for RT training (Sec. HHS) Compliance was voluntary Did not specify �penalties� for non-compliance Law was unenforceable Didn�t do what it was intended to do Laws you should know about:

37. Consistency, Accuracy, Responsibility & Excellence in Medical Imaging (CARE) Bill Originally discussed as an enforcement clause in the 1981 Act. Compliance mandatory - tied to MediCare/MediCAID reimbursement to force compliance 1997 � ASRT votes to advocate federally mandated standard for education & credentialing 1999 - First introduced as a Congressional bill 2011 - Still pending Congressional passage (H.R. 1207) Laws you should know about:

38. Calif SB 1237 Procedures to protect patients from radiation overexposure (ref CT Scans) � signed into law October 2010. Requires: CT Scan Dose reporting CT Facility accreditation Medical event reporting to DPH Effective July1,2012 Laws you should know about: