Medical Law/Application Process

1. Medical Law/Application Process

2. Classification of Law (2) • 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

3. Legal Torts “Legal or civil wrong committed by one person against the person or property of another person” • Two (2) Types • Intentional • Negligence

4. Intentional Tort of Misconduct • 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

5. Misconduct (types) • 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

6. Misconduct (types) • 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”

7. Misconduct (types) • 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)

8. Standard of Care • “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

9. Tort of Negligence • “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”

10. Medical Negligence = Malpractice 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

11. Malpractice classifications • 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)

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

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

14. Medico-Legal Doctrines • 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

15. Medico-Legal Doctrines • Res ipsaloquitur • “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.

16. Medico-Legal Doctrines • Corporate Liability • Duty of reasonable care in selection and retention of employees and medical staff • Duty of reasonable care in maintenance and use of equipment • Availability of services

17. Informed Consent 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

18. Informed Consent must contain: • 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)

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

20. The lack of a signed Informed Consent form constitutes medical malpractice! (Deviation from “Standard of Practice”)

21. Child Abuse • “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

22. Not reporting suspected child abuse • 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

23. Laws you should know about: • 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”

24. Laws you should know about: • 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

25. Laws you should know about: • 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)

26. Laws you should know about: • 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