Understanding Law: Definitions, Types, and Liability

1. Chapter 3 Legal Issues

2. What is “Law” and Who Makes It? • Definition of law: a system of rules, usually enforced through a collection of institutions commonly recognized as having the authority to do so

3. What is “Law” and Who Makes It? • U.S. Congress makes federal law. • Applicable to all per the Supremacy Clause of the Constitution • State legislatures make state law. • Applicable to those living or working within the state • Local governments make resolutions or ordinances. • Applicable to those within the specific jurisdiction

4. What is “Law” and Who Makes It? • U.S. Supreme Court “makes” law by interpreting constitution • Example: Roe v. Wade • Common law • Also known as “case law” or the law of “precedent” • Term originated to handle situations not covered by statute

5. Types of Liability Insurance • Liability and Professional Malpractice • Malpractice – “bad practice” • Malpractice is defined as any medical treatment that falls short of normal levels of skill, care or established medical procedure.

6. Types of Liability Insurance • Personal Injury Liability Insurance • Designed to protect policy holder from lawsuits filed because of alleged damage to an individual resulting from the invasion of privacy • Includes damage to someone’s character • In healthcare, an example of personal injury is when a patient’s personal medical information is released to the public.

7. Criminal vs. Civil Law • Criminal Law • Deals with one who has performed an act prohibited by law or failed to perform an act required by law • Standard of proof: Beyond a reasonable doubt • Civil Law • A collection of rules that govern the conduct and affairs of people, their rights, that are not a crime • Standard of proof: Preponderance of evidence

8. Criminal Law • Misdemeanors • A crime punishable by less than one year in a jail, most commonly a county or regional jail, not a state prison • Sometimes the punishment may include a fine, or a fine may be imposed

9. Criminal Law • Felonies • Crimes committed by people who intend to do significant harm to another, either through depriving them of their property or injuring them personal

10. Types of Crimes • Murder • The “unlawful killing of another with malice aforethought” • Legislatures have defined a number of degrees of murder based on the level of premeditation by the defendant or the status of the victim

11. Types of Crimes • Manslaughter • The unlawful killing of a human being without malice • Voluntary - upon a sudden quarrel or heat of passion • Involuntary – in the commission of an unlawful act…or without due caution and circumspection, of a lawful act which might produce death

12. Types of Crimes • Robbery • The unlawful taking of money or goods of another from his person or in immediate presence by force or intimidation • Burglary • Similar to robbery, but the difference is that burglary does not involve the presence of the victim

13. The Law of Torts • Tort • Comes from the Latin tortum, which means “wrong” • A tort can be intentional or unintentional

14. The Law of Torts • Intentional torts • Libel and slander (defamation of character) • Trespass • Intentional infliction of emotional distress • Medical malpractice • Unintentional • Accidental acts • Negligence

15. Negligence • Unintentional acts most often concern medical professionals • Central point: it happens by mistake or accident • Not planned or contrived in any way • Underlying principle that establishes whether plaintiff can collect for damages is standard of care the defendant owed the plaintiff

16. Four Factors of Negligence • There must be a duty of care owed by the defendant to the plaintiff. • There must be a breach of that duty by the defendant. • There must be harm (injury) suffered by the plaintiff. • That harm must be a result of the defendant’s breach of duty (causation).

17. Medical Malpractice • Six factors of medical malpractice • There is a relationship between the provider and the patient. • That relationship created a duty on the part of the provider toward the patient • The duty was of the nature of a professional standard of care.

18. Medical Malpractice • Six factors of medical malpractice, continued • The provider breached the duty to the patient. • The patient had a resulting injury. • The patient would not have sustained the injury but for the provider’s breach of duty (causation).

19. Medical Malpractice • Defenses to medical malpractice • Statute of limitations • Contributory negligence • Emergency

20. The Doctor-Patient Contract • Elements of a valid contract • Offer • Consideration • Acceptance

21. The Doctor-Patient Contract • Types of Contracts • Express • Patient directly communicates consent to the doctor • Implied • Health care providers may rely upon implied consent only in the absence of consent • Can never overrule the explicit rejection of medical care

22. Rights of the Parties to the Contract • In most cases involving health care providers, contracts are oral agreements and thus subject to both statutory and common law interpretations. • The MA is required to understand the provider’s obligations to the patient as well as the provider’s rights in the doctor–patient relationship.

23. Is It Abandonment of the Patient or a Proper Refusal of Care? • Termination of patient/provider relationship • Mutual consent of the patient and the doctor • Patient dismissing the doctor • The changed circumstance that care is no longer needed • Provider withdrawal from the relationship with written notice and reasonable time to find a new provider

24. When Providers are Compelled to Provide Care • When the patient is disabled with HIV • When the patient has sued the provider group for malpractice and there has not been enough time to notify the patient to seek a new doctor • When the relationship with the patient has not been continuous • When the abandonment could constitute a criminal act

25. Is the Patient Entitled to Privacy or Is the Doctor Required to Report? • Patient has a right to expect his or her communications with his or her provider to be kept confidential • Provider is required by statutes in most states to report child abuse and elder abuse • Courts will protect the provider for abiding by the law

26. Abuse • Elder abuse • Any abuse and neglect of persons age 60 and older by a caregiver or another person in a relationship involving an expectation of trust • Physical abuse • The use of physical force that may result in bodily injury, physical pain, or impairment

27. Neglect and Exploitation • Neglect • The failure or refusal of a caregiver or other responsible person to provide for an elder’s basic physical, emotional, or social needs, or failure to protect them from harm • Exploitation • Unauthorized or improper use of the resources of an elder for monetary or personal benefit, profit, or gain

28. Patient Self-Determination Act • Requires any health care provider accepting Medicare or Medicaid to inform the patient of: • his or her right to accept or refuse treatment • his or her rights regarding advance directives under state law • any hospital or provider policies regarding withholding or withdrawing life-sustaining equipment

29. Patient Self-Determination Act • Requires the provider to ask the patient about any advance directives • Powers of attorney • Living wills

30. Medical Records • Medical record is a collection of information about a patient • Careful maintenance of medical record is critically important • Patient care if referred to another provider • Required by licensing authorities • Document by which standard of care is substantiated

31. Medical Records • Providers and hospitals own the medical records they create. • Providers are ethically obligated to forward the record to another provider who assumes responsibility for care of the patient. • A court can order the records to be produced in a wide variety of circumstances.

32. Electronic Medical Records • Electronic medical records - patient records in a digital format • Electronic health records - refer to the interoperability of electronic medical records, or the ability to share medical records with other health care facilities • Use improves patient care coordination • Significant reduction in errors

33. Electronic Medical Records • Use of electronic records • Meaningful use incentives • Provided to physicians in ambulatory medical facilities that use EHRs when they demonstrate they are meaningful users of a certified EHR system   

34. Changing Medical Records • Do not change a medical record! • Records should not be altered or amended in any way unless it is necessary to make the record more accurate or more complete. • If a change is appropriate, the time and date of the change should be noted along with language specifically pointing out the change.

35. Adding an Addendum • Addendum displays at the end of the original progress note • Helps track updates made to the note • Can be added to both a signed and unsigned electronic progress note to accommodate any clinical workflow your practice follows

36. Confidentiality and Release of the Medical Record • Provider and the hospital have the right to restrict the record to their premises. • Patient has a right to expect the provider to keep all aspects of the record confidential. • Health Insurance Portability and Accountability Act (HIPAA) • Statutory law regarding safeguard of medical record

37. HIPAA • HIPAA Privacy Rule • HIPAA Security Rule • The material in the medical record is part of a privileged communication between the provider and the patient.

38. Mandatory Reporting and Release of the Record • Medical office or hospital can be compelled to provide an individual’s medical record • Provider required to report in the case of all infectious diseases to the local health department • Public interest in preventing the spread of disease to serve the public’s safety outweighs the privacy interest of the patient

39. Mandatory Reporting and Release of the Record • Providers and hospitals can also be required to report certain crimes. • Rape • Domestic abuse • Elder abuse • Child abuse • Provider can be ordered by court to release medical records

40. Government Regulation of the Medical Office • Occupational Safety and Health Administration (OSHA) • Ensures that employers have safe work environments for employees • Clinical Laboratory Improvement Amendments (CLIA) of 1988 • Food and Drug Administration (FDA) • Drug Enforcement Agency (DEA)

41. Federal Laws Affecting the Provider Office • Affordable Care Act (ACA) • Health Insurance Portability and Accountability Act (HIPAA) • Title I – Continuation of health insurance coverage when workers change or lose jobs • Title II – The Privacy Rule

42. Federal Laws Affecting the Provider Office • The Good Samaritan Act • Americans with Disabilities Act Amendments Act (ADAAA) • Uniform Anatomical Gift Act • Genetic Information Nondiscrimination Act of 2008 (GINA) • Stark law

43. Scope of Practice • Always perform delegated duties within your scope of practice (working under a physician’s direct supervision), consistent with your education, training, and experience. • Duties shall not constitute the practice of medicine. • Duties/exam and certification requirements will vary according to state law.

44. Scope of Practice • Medical assistants must adhere to the rules, regulations, and requirements that are: • Mandated by the state in which they work • Imposed by their credentialing body or certification association • All medical assistants must comply with HIPAA.

45. Risk Management • The identification of all exposure to financial loss of a business and includes the selection of techniques to manage those exposures • Management of risk process • Diagnosis • Assessment • Prognosis • Management