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Chapter 9
Corporate Structure and Legal Issues
See text case – Denton RMC v. LaCroix – pp.186 & 228 – LaCroix suffered irreversible brain damage
from cardiac arrest and loss of oxygen during a c-section. Anesthesiologists settled with the LaCroixes
for $1.25m. Was the hospital also liable for $8.8m. in damages medical negligence under a theory of
corporate liability? Consider anesthesia department policies and procedures.
I.
Express Corporate Authority - the power granted by state statute, p.187
A. Implied Corporate Authority - authority not expressed by written words.
B. Ultra Vires Act- acting beyond scope of authority.
II.
Corporate Committee Structure, p.190
A. Executive Committee - liaison between management and full board
B. Bylaws Committee - reviews & recommended bylaw changes to the governing body
C. Finance Committee - oversees financial affairs of the organization.
D. Joint Conference Committee - representatives from medical executive committees of
governing body and medical staff, including representation from administration and
nursing to discuss matters of policy and practice pertaining to patient care.
E. Nominating Committee - develop and recommend criteria for governing body
membership.
F. Planning Committee – recommends the use & development of organizational resources
consistent with the mission & vision of the organization.
G. Patient Care Committee - review, evaluate and implement plans for improving
organizational performance.
H. Audit and Regulatory Compliance Committee - develop corporate auditing policies &
procedures & review reliability & integrity of financial & operating information
I.
III.
Safety Committee Responsibilities - responsible for overseeing organization’s safety
management program.
Corporate Ethics, p.192
A. Developing a code of ethics – guidelines to carry out mission, vision, & values
B. Corporate conduct under scrutiny – monitored for conduct like false advertising,
kickbacks, & fraudulent acts
C. Sarbanes-Oxley Act, p.193
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1. Was signed into law by President Bush on July 30, 2002, in response to the Enron
debacle & high-profile cases of corporate mismanagement
2. The Act contains 11 titles, or sections, ranging from additional corporate board
responsibilities to criminal penalties, and requires Securities & Exchange
Commission to implement rulings on requirements to comply with SOX.
3. Several Major Provisions of SOX
a. Certification of financial reports
b. Criminal and civil penalties for securities violations
c. Significantly longer jail sentences and larger fines of corporate executives, who
knowingly misstate financial statements.
d. Codes of ethics and standards of conduct for executive officers and board
members (most companies have expanded code of ethics to include all
employees)
D. Build & restore trust – lack of trust is pervasive in the health care system (malpractice,
IOM report on mistakes, etc.) & requires strategies by organizations to establish ethical
cultures that build consumer trust
E.
Elements of a Corporate Compliance Program, p. 194
1. Federal government initiative to investigate and prosecute health care
organizations for criminal wrongdoing
2. Establishment of policies and procedures
3. Appointment of a corporate compliance officer
4. Communication of program to employees
5. Implementation of program
6. Consistent enforcement
IV.
Corporate Negligence, p.194
A. Doctrine under which hospital is liable if it fails to uphold proper standard of care owed
the patient.
B. Theory of liability creates a non-delegable duty which the health care corporation owes
the patients.
C. Darling v. Charleston Community Memorial Hospital – A Benchmark Case, p.196
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1. 18 years old Football player injured.
2. Fracture of tibia and fibula
3. Leg casted by general practitioner in emergency department
4. Patient complains of pain.
5. No specialist called for consultation.
6. Two weeks later – patient transferred.
7. Eventually leg amputated.
8. No expert testimony presented.
9. Documentary evidence included medical records, hospital’s bylaws, Illinois hospital
Licensing Act, & JCAHO standards
10. Hospital, as a corporate entity, liable for both the negligent act of nurses, &
physicians
V.
Doctrine of Respondeat Superior, p.197
A. Respondeat Superior – “let the master answer.”
1. Legal doctrine holding employers liable for the wrongful acts of their employees.
2. Also referred to as vicarious liability, whereby an employer is answerable for the
torts committed by employees.
3. To impute liability to the employer
a. Master- servant relationship between employer and employee must exist.
b. Wrongful act of employee must occur within scope of employment.
B. Hoffman v. Moore Regional Hospital case, p.198 – Hospital not liable for negligence of
radiologist under a theory of respondeat superior (member of a contract radiology
group, not employee, no control, did not affect the patient treatment decision)
C. Independent Contractors
1. Responsible for their own negligent acts
2. Principal must not have right to control agent’s work
D. Corporate Officer/Director
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1. An officer or a director of a corporation is not personally liable for the torts of
corporate employees.
2. To incur liability, the officer or the director must be shown to have in some way
authorized, directed, or participated in tortious act.
VI.
Governing Body Responsibilities, p.198
A. Appoint CEO and Medical Staff Appointments and Privileging
Johnson v. Misericordia Community Hospital, p.203 – Failure to screen an applicant’s
application can result in liability for patient injuries (prospective review, inputs, false
applications)
Elam v. College Park Hospital – Hospital is liable to a patient under the doctrine of corporate
liability for negligence by independent physicians who are neither employees nor agents of
the hospital.
Candler General Hospital v. Persaud, p.205 – Hospital has a direct and independent duty to
patients to reasonably assure that physicians using the hospital are qualified for the
privileges granted (grant of temporary privileges, laparoscopic laser cholecystectomy
procedure, and wrongful death claim)
B. Comply with the law.
C. Comply with standards of accrediting organizations.
D. Provide timely treatment.
E. Avoid self-dealing & conflict of interest.
F. Provide adequate staff – deficient nursing care, timely response to patient calls,
postoperative care, nursing facility staffing, deficient care given
G. Provide adequate insurance.
H. Be financially scrupulous.
I. Require competitive bidding.
J. Provide a safe environment – unsafe conditions, construction hazards, fire hazards,
chemical hazards
K. Medical equipment – failure to educate staff, failure to properly maintain equipment,
contracted preventive maintenance.
L. Duty to prevent falls – parking lot safety, hospital lot safety, stretcher safety, safe use of
restraints, window safety, slippery floors, loading dock safety
M. Duty to safeguard patient valuables.
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VII.
CEO/ Administrator Role and Responsibility, p.201
A. Tort liability of the CEO – wrongful injury in performance of duties
B. CEO’s liability for the acts of others – not generally liable
C. Regulatory agencies – correction of deficiencies
VIII.
Medical Staff, p.203 - Governing board has ultimate responsibility for approving: medical
staff bylaws, application requirements for privileges, requirements for medical staff
consultations, process for granting emergency staff privileges, peer-review process, process
for auditing medical records, process for addressing disruptive physicians, & process for
disciplinary action
IX.
Corporate Reorganization, p.222
A. Hospitals, because of fewer revenues from traditional sources (3rd party payers), have
restructured to set-up related business enterprises in order to increase revenues to
support patient care operations (diversification to expand book of business)
B. Legal pressures present substantial impediments.
C. Regulatory pressures
1. Taxation – for profits are non- exempt.
2. Third-party reimbursement – payers carve out unrelated costs.
3. Certificate of Need – (CON)
4. Financing – capital financing (caveat – physicians & fraud & abuse laws)
5. Corporate restructuring alternatives – not for profit examples
a. Parent holding company model.
b. Controlled foundation
c. Independent foundation
6. General considerations – purpose is alternative sources of revenue.
7. Medical staff and restructuring – joint ventures
8. Fund raising - donors.
9. Competition and Restructuring
a. Restructuring is an undertaking that requires careful planning and legal and
accounting advice.
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b. Restructuring should be undertaken not because it is “fashionable” but rather
because it will provide the hospital with opportunities not available under its
current structure.
c. HCA v. FTC, p.227 – a proprietary hospital chain violated Section 7 of the Clayton
Act as its acquisitions were likely to foster collusive practices harmful to
consumers.
10. Safe Harbor Regulations - describe how health care providers should structure
financial arrangements to be exempt from prosecution by the DOJ & FTC
11. Antitrust Safety Zone
a. DOJ and FTC issued policy statements that address antitrust safety zones
concerning mergers, joint ventures, etc.
b. Statements give health care providers guidance which describe circumstances
under which agencies will not challenge conduct as though they were violations
of antitrust law
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Chapter 10
Medical Staff Organization & Malpractice
See text case, Bombagetti v. Amine, pp.233&271 - Surgeon mistakenly removed disk at L3-L4 rather than
herniated disk at L4-L5. The patient’s condition worsened & the defendant’s negligence caused the
plaintiff’s pain & suffering.
I.
Principles of Medical Ethics – See p. 270 and XXX. Below.
II.
Medical Staff Organization, p.233
A. Executive Committee – Peer review is the dominant responsibility.
B. Bylaws Committee - Organization of the medical staff is described in its bylaws, rules
and regulations.
C. Blood Transfusion Committee - Develops blood usage policies and procedures & their
oversight.
D. Credentials Committee - Oversees application process for medical staff applicants,
requests for clinical privileges, and reappointments to the medical staff.
E. Infection Control Committee - Generally responsible for the development of policies and
procedures for investigating, controlling and preventing infections.
F. Medical Record Committee - Develops policies, and procedures, including completeness,
legibility, & timely completion & clinical pertinence
G. Pharmacy and Therapeutics Committee- Oversees tracking of medication errors,
adverse drug reactions & use of medications through monitoring and evaluation
H. Quality Improvement Council - Functions as patient care assessment & improvement
committee
I.
Tissue Committee - Surgical case reviews, including justification & indications for
surgical procedures.
J.
Utilization Review Committee - Monitors and evaluates utilization issues such as medical
necessity and appropriateness of admission and continued stay as well as appropriate
level of care.
III. Medical Director, p.234 -Serves as a liaison between medical staff & organization’s governing
body and management.
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IV.
Medical Staff Privileges
A. Credentialing and Privileging Process
1. Medical staff application should provide pertinent personal & professional
information.
2. National Practitioner Data Bank (NPDB)- Created by Congress as a national
repository of information with primary purpose of facilitating a comprehensive
review of physician’s and other health care practitioner’s professional credentials.
3. Delineation of Clinical Privileges - Process by which medical staff determines
precisely what procedure a physician is authorized to perform.
4. Governing Body Responsibility – Has ultimate responsibility for the selection of the
organization’s professional staff and ensuring that applicants to the organization’s
medical staff are qualified to perform the clinical privileges requested.
5. Reappointments- Credentials and department evaluations should be reviewed at a
minimum of every two years.
6. Screening for Competency – Hospital is responsible for ensuring that physicians are
qualified for the privileges granted.
B. Misrepresentation of Credentials – Can permanently revoke a physician’s license.
C. Limitations on Required Privileges – Can limit if bylaws & due process are followed.
V.
Physician Supervision and Monitoring - Responsibility to recognize incompetence &
suspend and terminate privileges (Darling case revisited)
VI.
Disruptive Physicians - Physician’s inability to work with other members of organizations
staff can be sufficient grounds to deny staff privileges
VII.
Practicing Outside Field of Competency, p.237 - Carrasco v. Bankoff
A. Surgeon not board certified in plastic surgery or trained in the management of burn
cases.
B. Standard of care required in a malpractice case will be that of the specialty in which a
physician is treating, whether or not he or she has been credentialed in that specialty.
VIII.
Inadequate Patient Assessments, History and Physical Examinations
1. Moheet v. State Bd. of Regis. For Healing Arts, p.238&240 – The Hearing Commission
had cause to discipline the physician by subjecting him and his medical license to public
reprimand for failure to meet the standard of care and gross negligence.
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2. Foley v. Bishop Clarkson Memorial hospital, p.240 - Hospital held that failure to obtain
an adequate family history and perform an adequate physical examination violates the
standard of care owed to the patient.
3. Gibson v. Moskovitz, p.241 – Physician held responsible in the wrongful death of a
correctional facility inmate with a behavioral health condition. There was an incorrect
diagnosis and treatment plan that ultimately resulted in the patient’s death from
dehydration.
IX. Misdiagnosing Unconscious Accident Victim was Malpractice, p.242 – Ramburg v. Morgan
A. The police department physician examined an unconscious man who had been struck by an
automobile. The physician concluded that the patient’s insensibility was a result of alcohol
intoxication, not the accident, & ordered the police to remove him to jail instead of the
hospital. The man, to the physician’s knowledge, remained semiconscious for several days
and finally was taken to the hospital at the insistence of his family. The patient subsequently
died. An autopsy revealed massive skull fractures.
B. Although the physician does not ensure the correctness of the diagnosis or treatment, a
patient is entitled to such a thorough & careful examination as his or her condition and
attending circumstances permit, with such diligence and methods of diagnosis as usually are
approved and practiced by medical people of ordinary or average learning, judgment, and
skill in the community or similar localities.
X.
Failure to Obtain 2nd Opinion - Goodwich v. Sinai Hospital held that physicians must
seek 2nd opinions when required
A. Record was replete with documentation of questionable patient management &
continual failure to comply with 2nd opinion agreements.
B. Case demonstrates reasonable use of peer review process.
XI.
Aggravation of a Preexisting Condition, p.243 - Nguyen v. County of Los Angeles
A. Hip study of eight-month-old female patient resulted in cardiac arrest and brain
damage.
B. Aggravation of a preexisting condition through negligence may cause a physician to be
liable for malpractice.
C. If the original injury is aggravated, liability will be imposed only for the aggravation,
rather than for both the original injury & its aggravation.
XII.
Failure to Promptly Review Test Results, p. 245 - Smith v. U.S. Department of Veterans
Affairs held that a physician’s failure to promptly review test results can be the proximate
cause of a patient’s injuries
XIII.
Timely Diagnosis, p.247 – Powell v. Margileth
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A. Physician treated patient for cat scratch disease later diagnosed as stage IV cancer
(likely Hodgkins Disease), & patient died three years later.
B. Physician can be liable for reducing a patient’s chances for survival.
C. Timely diagnosis of a patients’ condition is as important as the need to accurately
diagnose the patient’s injury or disease.
D. Failure to timely diagnose can constitute malpractice if a patient suffers injury as a
result of such failure.
XIV.
Misdiagnosis, p.251 - Corley v. State Department of Health Hospitals
A. Failure to form a differential diagnosis can result in liability.
B. Physician’s failed to consider other diagnoses – back pain was due to a malignant chest
mass.
XV.
XVI.
Pathologist Misdiagnosis of Breast Cancer - Anne Arundel Med. Ctr. Inc. v. Condon, p.252
held that pathologist’s failure to interpret invasive carcinoma was a departure from standard
of care required and was proximate cause of patient’s injuries
Delaying Treatment, p.255 – Blackmon v. Langley
A. Patient not informed by physician that an x-ray showed a lung lesion later diagnosed as
cancer.
B. Physician may be liable for failing to respond promptly if it can be established that such
inaction caused a patient’s death.
XVII.
Respond to Emergency Call, p.257 - Dillon v. Silver
A. Physicians on call in emergency department are expected to respond to request for
emergency assistance when such is considered necessary.
B. Failure to respond is grounds for negligence should a patient suffer injury as a result of
physician’s failure to respond.
XVIII.
Medication Errors – more frequent categories include wrong dosage, abuse in prescribing
medications, medications aggravate preexisting condition.
XIX.
Surgery
A. Examples of potential surgical negligence include, phantom surgeon, wrong surgical
procedure, correct surgery- wrong site, wrong site- surgery and fraud.
B. Foreign Objects Left in Patient, p.261 - Williams v. Kilgore
1. Needle fragment left in patient’s lower back, following a biopsy in 1964.
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2. Back pain eventually resulted in removal of the fragment in 1985.
3. Suit was not time barred by statute of limitations based on when patient had
reasonable knowledge of the injury.
C. Wick v. Henderson, p.262– Improper positioning of arm resulted on ulnar nerve injury
following gallbladder surgery (res ipsa loquitor was applied)
D. Lacomb v. Dr. Walter Olin Moss Regional Hospital – Sciatic nerve injury resulted
following a bladder suspension surgery (re ipsa loquitor was applied)
XX.
Failure to Maintain Adequate Airway - Ward v. Epting, p.262
A. Anesthesiologist failed to conform to the standard of care.
B. Deviation from the standard was the proximate cause of the patient’s death.
XXI.
Failure to Refer, p.263 - Doan v. Griffith
A. Patient had multiple facial fractures.
B. A physician has a duty to refer patient whom he or she knows or should know needs
referral to a physician familiar with and clinically capable of treating the patient’s
ailments.
C. To recover damages, plaintiff must show that the physician deviated from the standard
of care and that the failure to refer resulted in injury.
XXII.
Improper Performance of a Procedure - Improper performance of a procedure can result in
injury to the patient & liability for the physician
XXIII.
Failure to Follow Up, p.264 – Truan v. Smith
A. Case of outrageous neglect by a physician of a breast cancer case
B. Failure to provide follow-up care can result in a lawsuit if such failure results in injury to
patient
XXIV.
Loss of Chance to Survive
A. A loss of chance to survive can result in malpractice.
B. See text cases:

Boudoin v. Nicholson, Baehr, Calhoun and Lanasa, pp.253-254

Downey V. University Internists of St. Louis, Inc., p.264
XXV. Lack of Documentation – If it is not written down, it did not happen.
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XXVI. Premature Discharge – Decisions to discharge patients should be based on medical reasons.
XXVII. Abandonment, p.265 - Elements necessary to recover damages for abandonment are the
following: Medical care unreasonably discontinued; discontinue against patient’s will;
failure to assure follow up care for patient; foresight- failure could result in patient injury; &
actual harm was suffered by patient.
XXVIII.
Infections, p.265
A. Nosocomial (hospital acquired) infections should be critically managed for individual
patients.
B. Infection rates should be studied to assure that they are within the range of the norm.
XXIX.
Psychiatry, p.266
A. Commitment – major risk areas of psychiatry are found on pp.266-269.
B. Duty to Warn, p.269
1. Tarasoff v. Regents of the University of California held a duty to warn a patient’s
foreseeable victims
2. Exceptions to duty to warn include confidentiality & statutes making the duty
discretionary with mental health providers (Texas)
XXX. Principles of Medical Ethics, p.270
A. Code of Medical Ethics includes principles of competence, compassion,
Professionalism, & respect at several levels of interaction
B. My Hopes for Help Crumble, p.271 – frustrated patient’s letter to her physician
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Chapter 11
Nursing and the Law
See text case, Ard v. East Jefferson General Hospital, pp. 276&307– Nursing staff breached the standard
of care for failing to respond to a patient in distress who subsequently died. The patient’s wife
unsuccessfully sought call bell help for 1 ¼ hours. The medical record further supported her testimony.
I.
Expanded Scope of Practice & Nursing Milestones, p.277
A. Refers to the permissible boundaries of practice for health care professionals, defined
in state statues, which defines the actions, duties and limits of nurses in their
particular roles
B. Role of nurse continues to expand due to shortage of primary care physicians, everincreasing specialization, improved technology, public demand, & expectations within
the professions itself
C. 1952- All states, including the District of Columbia and U.S. territories, had enacted
nurse practice acts
D. 1990- The American Nurses Association (ANA) again amended its model definition for
nursing practice to include the advanced nurse practitioner (NP) and the registered
nurse (RN)
II.
Nursing Diagnosis Allowed in Cignetti v. Camel, p.278
A. Defendant physician ignored nurse’s assessment of patient’s diagnosis which
contributed to delay in treatment and injury to the patient. Nurse testified that she told
the physician that patient’s signs and symptoms were not those associated with
indigestion. Defendant physician objected to this testimony, indicating that such a
statement constituted a medical diagnosis by a nurse. The trial court permitted the
testimony to be entered into evidence.
B. Missouri Court of Appeals affirmed lower court’s ruling, holding that evidence of
negligence presented by the hospital employee, for which an obstetrician was not
responsible, was admissible to show events that occurred during patient’s hospital stay.
III.
Nurse Licensure
A. Professional training is required for nurse licensure in all states.
B. Out – of – state nurses are licensed by reciprocity, endorsement, waiver & examination.
C. Suspension and Revocation of License - Violations may include procurement of license
by fraud; unprofessional, dishonorable, and immoral or illegal conduct; performance of
specific actions prohibited by statute; & malpractice
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D. Practicing without a License
1. Health care organizations are required to verify that each nurses’ license is current.
2. Mere fact that an unlicensed practitioner is hired will not generally in and off itself
impose additional liability unless a patient suffered harm because of an unlicensed
nurse’s negligence.
IV.
American Nurses Association & the National League of Nursing – ANA is the national
professional association for graduate nurses who are licensed, & the NLN is a membership
organization for diverse stakeholders seeking to improve nursing services & education
V.
Nursing Negligence – National Practitioner Data Bank & the more common area of litigation,
including anesthesia, diagnosis, & monitoring
VI.
Nurse Manager, p.280
A. Chief nursing officer has responsibility for maintaining standards of practice,
maintaining current policy and procedure manuals, recommending staffing levels,
coordinating and integrating nursing services with other patient care services, selecting
nursing staff, & developing orientation and training programs
B. Failure to supervise can lead to disciplinary action.
VII.
Certified Nursing Assistant
A.
An aid who has been certified and trained to assist patients with activities of daily living
under the direction and supervision of an RN or LPN
B. Nursing assistant help in positioning, turning, lifting, and performing a variety of tests
and treatments
C. Examples of patient injuries by nursing assistants for failure to follow policy and safe
practices include patient burns (scalded), falls & transfer (lift)
VIII.
Float Nurse, p.282
A. Nurse who rotates from unit to unit based on staffing needs.
B. “Floaters” can benefit an understaffed unit, but they also may present a liability as well
if they are assigned to work in an area outside their expertise.
C. If a patient is injured because of a floater’s negligence, the standard of care required of
the floater will be that required of a nurse on the assigned patient care unit
IX.
Agency Staff, p.283 - Organizations are at risk for negligent conduct of agency staff & must
assure that agency workers have the necessary skills and competencies to carry out duties
and responsibilities assigned by the organization.
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X.
Special Duty Nurse
A.
A health care professional employed by a patient or patient’s family to perform nursing
care for the patient.
B. If a master- servant relationship exists between an organization and special duty nurse,
doctrine of respondeat superior may be applied to impose liability on the organization
for nurse’s negligent acts.
XI.
Student Nurses – Are entrusted with responsibility of providing nursing care to patients;
personally liable for their own negligent acts, and the facility is liable for their acts on the
basis of respondeat superior; & held to the standard of a competent professional nurse
when performing nursing duties
XII.
Nurse Practitioner, p. 284
A.
RNs that have completed education sufficient to engage in primary health care decision
making.
B. Trained in delivery of primary health care and assessment of psychological and physical
health problems such as the performance of routine examinations and ordering of
routine diagnostic tests.
C. Adams V. Krueger, p.285 – NP’s negligence imputed to physician for incorrect diagnosis
& treatment plan & for failure to review NP’s plan
XIII. Clinical Nurse Specialist, p. 284 – Professional RN with an advanced academic degree,
experience, and expertise in a clinical specialty (e.g., obstetrics, psychiatry, pediatrics, etc.).
XIV.
Nurse Anesthetist
A. Administration of anesthesia by a nurse anesthetist requires special training and
certification.
B. Nurse-administered anesthesia was the first expanded role of nurses requiring
certification.
C. Oversight and availability of an anesthesiologist are required by most organizations.
D. Major risks of nurse anesthetist include:
1. Improper placement of an airway
2. Failure to recognize significant changes in a patient’s condition
3. Improper use of anesthetics
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E. Denton Regional Medical Centre V. La Croix, note case and not in text
1.
Hospital held liable for negligence for failing to have an anesthesiologist present or
available in surgery.
2.
CRNA was present.
3.
Patient suffered irreversible brain damage.
4.
Multimillion dollar award to plaintiff
XV. Certified Nurse Midwife, p.285
A. Nurse midwives provide comprehensive prenatal care including delivery for patients
who are at low risk for complications.
B. They often manage normal prenatal, intrapartum, and post-partum care.
C. Provided that there are no complications, normal newborns are also cared for a nurse
midwife.
D. Nurse midwives often provide primary care for women’s issues from puberty to post
menopause.
E. Morris v. Department of Professional Regulation, p.286 - Practicing without a license
resulted in suspension, probation & a fine.
F. Ali v. Community Health Care Plan, Inc., p.286 – Standard of care required of a nurse
midwife is that applicable to nurse midwife rather than an ob/gyn professional.
XVI. Dilemma of two Standards of Care, p.288 - Edwards v. Brandywine Hospital
A. Patient allegedly suffered staph infection from failure to change placement of catheter
within 48 hrs. (AHA recommendation)
B. Hospital had 72 hrs. rule
C. When faced with dilemma of two standards for rendering patient care, an organization
may find it more attractive to adopt the one least restrictive or labor intensive.
D. Could prove to be costly decision for both patient and organization by increasing the
risk of patient injury & organization’s exposure to corporate liability for any injury
suffered from following the less restrictive standard
XVII. Patient Misidentification, p.289
A. Surgical staples removed from wrong patient.
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B. Chart was not checked.
C. Wrist band was not checked.
D. Wrist band was not checked against chart.
(Meena v. Wilburn)
E. Inadvertent or negligent switching of infants can lead to liability for damages.
F. Damages in the amount of $ 110,000 were awarded for the inadvertent switching of two
babies born at the same time.
G. Follow organization’s policy and procedure in patient identification process.
(De Leon Lopez v. Corporacion Insular de Seguros, p.290)
XVIII. Patient Monitoring and Observation
A. Eyoma v. Falco, p.290
1. Nurses have responsibility to observe the condition of patients under their care and
report any pertinent findings to the attending physician.
2. Failure to note changes in a patient’s condition can lead to liability on the part of the
nurse and organization
a. Nurse assigned to monitor a post- surgical patient, left the patient and failed to
recognize that the patient had stopped breathing.
b. Nurse had been assigned to monitor the patient in the recovery room.
c. She delegated duty to another nurse and failed to verify that the nurse accepted.
the responsibility
B. McCann v. ABC Insurance Company, p.290
1. Evidence presented indicated that the standard care would require that fetal
heartbeats be monitored every ten minutes following removal of the fetal monitor.
2. Evidence presented indicated that this did not occur.
C. Brandon HMA, Inc. v. Bradshaw, p.291
1. Failure to properly monitor patient admitted for bacterial pneumonia
2. Failure to report vital information to patient’s physician
3. Allowed condition to deteriorate to critical stage, before implementing urgent care
or implementing life support
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4. Plaintiff awarded $9 million for resulting brain damage & physical disability
D. Porter v. Lima Memorial Hospital, p.292
1. Infant suffered paralysis from waist down following an automobile accident
2. Physician held responsible for not diagnosing spinal cord injury & initiating
immobilization, care & work up
3. Nurse’s conduct not held to be a proximate cause of the paralysis (failure to repeat
vital signs)
E. Odom V. State Department of Health and Hospitals, p.293 –court held monitor should
have been on, but was disconnected by the staff and led to patient’s death.
F. Failure to report defective equipment can cause a nurse to be held liable for
negligence if the failure to report is the proximate cause of a patient’s injuries (The
defect must be known and not hidden from sight.), p.203
XIX. Delay in Reporting Patient’s Condition, p.293
A. An organization’s policies and procedures should prescribe guidelines for staff members
to follow when confronted with a physician or other health care professional or other
health care professional whose action or inaction jeopardizes the well-being of a
patient.
(Goff v. Doctors General Hospital, p.294)
B. Physician inserted a catheter into the wrong artery in the patient’s right leg
compromising the blood flow to the leg & causing loss of pulse and sensation
C. This error was compounded when hospital nurses on the patient’s floor were unable to
reach the physician for six hours and never attempted to reach a back- up physician to
alert them of patient’s deteriorating condition
(Cuervo v. Mercy Hospital, Inc.)
D. Court held that there was sufficient evidence to authorize the jury to find that the nurse
was negligent in failing to timely notify the physician that delivery of plaintiff’s child was
imminent.
E. This delay resulted in an unattended childbirth with consequent injuries.
F. Plaintiff was awarded $15,000.
(Hiatt v. Grace, p.294)
G. Hospital’s nurse was negligent in failing to inform the physician of all the patient’s
symptoms, to conduct a proper examination of the plaintiff, & to follow the directions of
the physician.
(Citizen’s Hospital Association v. Schoulin, p.294)
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H. Failure to follow infection control procedures can result in cross contamination between
patient’s, staff and visitor
I. This failure to notify physician found to be a factor in the death of nursing home resident
with decubitus ulcers; $2 million in punitive damages allowed.
(Montgomery Health Care v. Ballard, p.295)
XX. Delay in Treatment, p.295 – Howerton v. Mary Immaculate Hospital Inc.
A. Minutes count!
B. Nurses delay contacting obstetrician.
1. Patient suffers worsening pain (uterus had ruptured in three places during labor;
baby had extensive neurological damage)
2. At trial, expert witness stated that labor and delivery room nurses should have
immediately gone to the patient when they were notified of worsening pain,
evaluate her condition, and notify her physician.
XXI. Failure to Follow Orders, p.296 - Redel v. Capital Regional Medical Center
A. Nurses caused permanent drop foot to the patient.
B. They failed to follow the doctor’s oral orders to watch the patient closely and to place
him in one continuous passive motion machine at a time during physical therapy.
XXII. Leaving Patient Unattended, p.297 – Vanhoy v. U.S.
A. Coronary bypass surgery patient left unattended for several hours by ICU nurses.
B. Patient suffered anoxic brain injury & was permanently disabled.
C. Awarded lump-sum payment of $3.5m.
XXIII. Failure to Record Patient’s Care – Pellerin v. Humedicenters, Inc.
A. Nurse admitted she failed to record site and mode of injection in ED records.
B. Experts testified that failing to record this information is below standard care for
nursing.
C. Although these omissions could not have affected administration of the injection, they
tend to indicate that the nurse did not follow accepted procedure while performing her
job.
D. Failure to discontinue a drug.
E. Failure to identify the correct patient.
21
F. Failure to note an order change.
XXIV. Medication Errors, p.297
A. Failure to administer drug.
B. Failure to document drug wastage
C. Administering a drug not prescribed
D. Administration of wrong drug
E. Failure to clarify orders.
F. Ambiguous orders
G. Administering the wrong dosage – Harder v. Clinton, p. 299
1. On appeal, plaintiff’s res ipsa loquitor pattern of proof was allowed
2. Case based on an overdose of a wrong prescription to a nursing home patient resulting
in a leg amputation
H. Negligent drug overdose
I. Administering drug by wrong route
J. Failure to discontinue a drug.
k. Failure to identify the correct patient.
L. Failure to note an order change.
XXV. Failure to follow infection-Control Procedures, p.301
A. The patient brought a medical malpractice action against the hospital, seeking damages
arising out of an operation performed with unsterile instruments.
B. Nurse in charge of the autoclave used to sterilize instruments was alleged not to have
properly monitored the sterilization process.
(Howard v. Alexandria Hospital)
XXVI. Negligent Procedures
A. Monk v. Doctors Hospital
1. Negligent use of a Bovie plate led to liability in which nurse was instructed by the
physician to set up a Bovie machine.
22
2. Nurse negligently placed contact plate of Bovie machine under the patient’s right calf
causing burns.
3. Patient introduced instruction manuals, issued by the manufacturer, to support a
claim that the plate was placed improperly.
4. Manuals had been available to the hospital
B. Morris v. Children’s Hospital Medical Centre, p.302
1. Morris alleged from personal observation that the laceration to her daughter’s arm
was caused by the jagged edges of a plastic cup that had been split and placed on her
arm to guard an IV site
2. A nurse, qualified as an expert, expressed her opinion that the practice of placing a
split plastic cup over an IV site as a guard constituted a breach of the standard of
nursing care
C. Bernardi v. Community Hospital Association -Nurse negligently injected the tetracycline
into or adjacent to the sciatic nerve, causing the patient to permanently lose the
normal usage of the right foot
D. Ahmed v. Children’s Hospital of Buffalo
1. A nurse employed by the defendant amputated nearly one third of a one-month old
infant’s index finger while cutting an IV tube
2. Damage awards of $87,000 for past pain and suffering & $50,000 for future damages
3. Defendant moved to set aside the verdict and sought a new trial
4. The appellate court found that the jury’s award of damages did not deviate materially
from what would be reasonable compensation.
E. Romero v. Bellina, p.303
1. Sponge and instrument miscounts
2. Both nurses and surgeons are responsible
a. Surgeon’s duty is independent and nondelegable.
b. Nurses have an independent duty that is a remedial measure.
F. Always verify infant’s identification badge with mother’s
XXVII.
Patient Falls, p.303 - Among elders, falls represent the fifth leading cause of death and
the mortality rate from falls increases significantly with age
23
A. Proper Use of Restraints – Estate of Hendickson v. Genesis Health Venture Inc., p.303 –
failure to follow restraint policies was the proximate cause of death
B. Failure to Raise Bed Rails – Polonsky v. Union Hospital, p.304 – nurse failed to exercise
due care when she failed to raise rails after administering a sleeping medication
C. Patient Fall: Safe Procedures Followed – Stoker v. Torenteno – nurse did not improperly
leave a wheelchair resident alone in bathroom (no written or verbal order)
D. Fall from Examination Table – Petry v. Nassau Hospital – damages recovered for fall from
narrow exam table in emergency room (patient left unattended by nurse in charge)
XXVIII. Failure to Question Discharge, p. 304
A. Koeniguer v. Eckrich - A nurse has a duty to question the premature discharge of a
patient if he or she has reason to believe that such a discharge could be injurious to the
health of the patient
B. NKC Hospitals, Inc. v. Anthony, p.305
1. Hospital’s negligence is based on acts of omission by failing to have the patient
examined by a physician and by discharging her in pain.
2. Evidence presented a woman conscious of her last days on the earth, swollen
beyond recognition, tubes exiting almost every orifice of her body, in severe pain,
and who deteriorated to the point where she could not verbally communicate with
loved ones.
3. Negligence of hospital not superseded by that of the primary care physician.
4. Pain & suffering award of over $ 2 million was upheld.
XXIX. Failure to Report Physician Negligence – Goff v. Doctors General Hospital, p.305
A. Patient bleeding seriously after childbirth due to physician’s failure to suture properly
B. Note changes in patient’s condition
C. Report changes in patient’s condition
1. Prompt notification required.
2. Physician failure to respond.
3. Report “all” patient symptoms
24
Chapter 12
Hospital Departments and Allied Professionals
See text case Ronnie Green, pp. 311&353 – Failure to responsibly triage emergency patients can result
in lawsuit (9-1-1 call outside hospital ER because the ER failed to treat a 3YOF who died three days
later)
I.
First Responders, p.311
A. Many states have legislation that provides civil immunity to paramedics who render
emergency lifesaving services.
B. Riffe v. Vereb Ambulance Service, Inc., p.314 – wrongful death action resulting from
(EMS) administering lidocaine at 44 times the normal dosage
C. Application for Paramedic License Denied
1. Multiple felony convictions
2. Remanded to board based on pardon for convictions
II.
Emergency Department, p.314
A. Emergency Medical Treatment & EMTALA, p.315
1. In 1986, Congress passed the Emergency Medical Treatment and Active Labor Act
(EMTALA) that forbids Medicare- participating hospitals from “dumping” patients out of
emergency departments (EMTALA provision summarized)
2. An emergency medical condition is “a manifesting itself by acute symptoms of
sufficient severity (including severe pain) such that the absence of immediate medical
attention could reasonably be expected to result in (i) placing the health of the
individual (or, with respect to a pregnant woman, the health of the woman or her
unborn child) in serious jeopardy, (ii) serious impairment of bodily functions, (iii) serious
dysfunction of any bodily organ or part….”
3. EMTALA Text Cases, pp.316-318 – Includes claims concerning patient screening,
patient stabilization, alleged delay in patient transfer, appropriate screening and
discharge, & transfer prior to stabilizing patient
B. Wrong Record Fatal Mistake, p.318 -Trahan v. McManus
1. Terry was taken to the hospital after being injured in an automobile accident.
25
2. Upon ordering discharge, the ED physician had not realized that he had made the
fatal mistake of looking at the wrong chart in determining Terry’s status.
3. Terry died at home in his father’s arms as his head slumped forward.
4. The Emergency Department physician, by his own admission stated that he acted
negligently when he discharged Terry and that his actions led to Terry’s death.
C. Duty to Contact On-Call Physician
1. Hospitals are expected to notify specialty on-call physicians when their particular
skills are required in the emergency department.
2. A physician who is on call and fails to respond to a request to attend a patient can
be liable for injuries suffered by the patients.
3. Claims include failure to respond to call, lack of timely response, & providing
reasonable notice of inability to respond to call.
D. Objectives of Emergency Care, p.320
1. Treatment must begin as rapidly as possible.
2. Function is to be maintained or restored.
3. Scarring and deformity are to be minimized.
4. Treatment regardless of ability to pay.
5. Frightening slackers (intoxicated alcoholic) is not acceptable.
E.
Patient Leaves Emergency Department Without Notice – Griffith v. University Hospital
of Cleveland, p.320
1. In a wrongful death medical malpractice action alleging negligence, the trial court
properly granted summary judgment
2. Under Ohio law, an emergency room nurse has no duty to interfere with an
individual who leaves the ED without telling anyone and refuses treatment
F. Failure to Admit – Roy v. Gupta, p.321
1. Physicians were found negligent in failing to hospitalize the patient or failing to
inform her of the serious nature of her illness.
2. Trial court found that had the patient been hospitalized on her first visit, her
chances of survival would have been increased.
G. Documentation Sparse and Contradictory, p.321 - Fenney V. New England Medical
Centre
26
1. ED physician failed to evaluate the patient and to initiate care within first few
minutes of patient’s entry into the emergency facility.
2. Emergency physician had an obligation to determine who was waiting for physician
care and how critical the need was for that care.
H. Telephone Medicine can be Costly - Futch v. Attwood, p.321
1. Lauren was taken to the hospital emergency department.
a. Hospital personnel contacted physician by phone.
b. He returned the call and prescribed a Phenergan injection.
c. Physician did not go to the hospital and had not been given Lauren’s vital signs
when he suggested such an injection, and further failed to order any blood or
urine tests.
d.
Hospital records revealed that Lauren’s glucose level was 507 at the time of
admission.
e. Lauren went into respiratory failure and eventually died.
2. The trial court allocated $98,000 for the conscious pain and suffering of Lauren.
a. Defendant complained that the award of $98,000 was excessive.
b. Appellate court could not find that the trial court had erred in concluding what
sum was fair to both the parties.
I.
Improving Emergency Department Patient Care, p.322
1. Develop and implement policies and procedures.
2. Communicate with the patient and the patient’s family to ensure that a complete
and accurate picture of the patient’s symptoms and complaints are obtained.
3. Communicate among healthcare professionals.
4. Provide continuing education programs for all staff members.
5. Institute a preventive maintenance program for emergency equipment.
6. Provide timely triage.
7. Do not take lightly any patient’s complaints - may be the most serious mistake in the
emergency department.
8. Professionals who cannot accept the concept that all patients, regardless of ailment,
must be treated should search for placement outside emergency department.
27
9. Hospitals need to determine what types of patients and levels of care they can
safely address & communicate with other hospitals, including emergency medical
service personnel in addressing transport and care issues.
J. Emergency Room Vital to Public Safety, p.323
1.
The hospital itself has come to be perceived as the provider of medical services.
2.
Patients come to the hospital to be cured.
3.
4.
Doctors who practice there are the hospital’s agents regardless of the nature of the
private arrangements between the hospital and the physician.
This is the reality of public perception and attendant public policy.
K. State Regulations, p.324
1. Legislation in many states imposes a duty on hospitals to provide emergency care.
2. The statutes implicitly, and sometimes explicitly, require hospitals to provide some
degree of emergency service.
III.
Laboratory, p.324
A. An organization’s lab provides data that are vital to a patient’s treatment.
1. Monitors therapeutic ranges, measures blood levels for toxicity, places
and monitors instrumentation on patient units.
2. Provides education for the nursing staff (such as glucose monitoring).
3. Provides valuable data utilized in research studies.
4. Provides data on the most effective and economical antibiotic for
treating patients.
5. Serves in a consultation role.
6. Provides valuable data as to the nutritional needs of patients.
B. Claims include failure to follow transfusion protocol, mismatched blood & refusal to
work with certain specimens; Dodson v. Community Blood Center, p.328 - Damage
award appropriate for transfusing the patient with the wrong blood resulting in
Hepatitis C
C. Sander v. Geib, Elston, Frost Professional Association, p.330
1. Pap Smears suspicious of cancer were read as normal for several years
28
2. Eventual diagnosis was terminal & metastatic cancer
3. Court determined evidence relating to negligence claims pertaining to Pap tests
taken more than two years before filing the action were admissible because the
patient had a continuing relationship with the clinical laboratory as a result of her
physician submitting her Pap tests to the laboratory over a period of time.
IV.
V.
Medical Assistant, p.331 - An unlicensed person who provides administrative, clerical,
and/or technical support to a licensed practitioner
Nutritional Services, p.333
A. Need to provide nutrition.
B. Failure to do so can result into a lawsuit.
C. Lambert v. Beverly Enterprise – Nursing facility patients are highly vulnerable (patient
suffered malnutrition, and motion to dismiss was denied).
VI.
Pharmacy, p.334
A. Immense variety and complexity of medications
B. Impossible for nurses or doctors to keep up with the information required for safe
medication use.
C. The pharmacist has become an essential resource in modern hospital practice.
D. Common types of medication errors:
1. Prescription errors
a. Wrong patient
b. Wrong drug
c. Inappropriate drug ordered due to known drug allergies, drug-drug and fooddrug interactions.
d. Wrong dose
e. Wrong route
f.
Wrong frequency
g. Transcription errors (due to illegible handwriting and improper use of
abbreviation)
h. Inadequate review of medication for appropriateness
29
2. Dispensing errors
a. Improper preparation of medication
b. Failure to properly formulate medications.
c. Dispensing expired medications
d. Mislabeling containers
e. Wrong patient
f.
Wrong dose
g. Wrong route
h. Misinterpretation of physician order
3. Documentation Errors
a. Transcription errors (often due to illegible handwriting and improper use of
abbreviations)
b. Inaccurate transcriptions to medication administration record (MAR)
c. Charted but not administered.
d. Administered but not documented on the MAR.
e. Discontinued order not noted on the MAR.
f.
Medication wasted and not recorded.
A. Government Control of Drugs, p.334
1. Federal Controls
a. Controlled Substance Act (CSA) of 1970, signed into law on October 27, 1970,
replaced virtually all preexisting federal laws dealing with narcotics, depressants
and stimulants.
b. Federal, Food, Drug and Cosmetic Act (FDCA) applies to drugs and devices
carried in interstate commerce and to goods produced and distributed in
federal territory.
2. State Regulations – Regulate Pharmacists & Pharmacies
3. Distribution (movement), Dispensing (processing), and Administration (single dose
given to patient) of Drugs
30
4. Storage of Drugs – In original containers & labeled properly.
5. Drug Substitution – Dispensing a different drug or brand in place of the drug or
brand ordered.
a. Prohibited in some states.
b. Formularies allow for generic substitution.
6. Decreasing Medication Misadventure
a. Be sure handwriting is legible & print if necessary.
b. For clarity, do not use felt – tip pens.
c. Abbreviations should be used according to hospital policy.
d. Do not write ambiguous orders.
e. Always add a zero prior to a decimal.
f.
Hold orders should be accompanied by a time frame.
g. Know about the medication you are prescribing.
h. Be sure medications are properly diluted before prescribing.
i.
Be sure that medications are being administered by the proper route.
7. Expanding role of the pharmacist
a. Duty to monitor patient’s medications (computer systems monitor for drugdrug interaction & drug- food interaction)
b. Warning patients- potential for overdose
c. Refusal to honor questionable prescriptions.
d. Limited duty to warn (Pharmacists cannot possibly warn caregivers and patients
of every potential danger of a drug)
VII. Physical Therapy, p.340
A. The art and science of preventing and treating neuromuscular or musculoskeletal
disabilities through the evaluation of an individual’s disability and rehabilitation
potential.
B.
Pontiff v. Pecot & Associates, p.341
1. Physical Therapist - incorrectly interpreted physician’s orders
31
2. Plaintiff alleged that defendant failed to exercise degree of care and skill ordinarily
exercised by physical therapists, failed to heed his protests that he could not
perform the physical therapy treatments she was supervising, and failed to stop
performing treatment after he began to complain he was in pain.
3. Plaintiff’s expert testified defendant deviated from standard of care by introducing a
type of exercise not prescribed by the physician.
4. The appeals court found that the trial court was correct in its determination that the
plaintiff presented sufficient evidence to show that therapist’s care fell below the
standard of other physical therapists.
C. Armintor v. Community Hospital of Brazosport, p.342
1. Oral contract to furnish services was terminated.
2. Hospital claimed that its attempt to establish a hospital – based physical therapy
program would have been disrupted if the independent therapist had been
permitted to continue treating patients.
3. Exclusion of a therapist is an administrative matter within the board’s discretion.
D. Zucker v. Axelrod
1. Physical therapist charged with resident neglect for refusing to allow an 82-year-old
nursing facility resident to go to the bathroom before starting his therapy treatment
session.
2. PT assumed resident had gone to bathroom before therapy.
3. Court held resident neglect was supported by the evidence.
E. Girgis v. Board of Physical Therapy
1. License was found to have been properly revoked
2. Physical therapist’s license had been properly revoked in eight other states
VIII. Physician’s Assistant, p.342
A. Work as physician extenders
B. Scope of practice is defined by each state.
C. Physician Assistants responsible for own negligent acts
IX. Radiology and Related Lawsuits, p.343
A. Negligence in medical imaging tests and therapies often involve a failure to protect
patients from falls and the negligent handling of equipment.
32
B. Schopp v. Our Lady of the Lake Hospital, p.344
1. Patient fell at home, striking head and was eventually taken to hospital.
2. Patient’s death caused by the negligence of hospital staff by dropping an x-ray
cassette on her head while undergoing a skull x-ray.
X. Respiratory Therapist, p.345
A. Therapy is the allied health profession responsible for the treatment, management,
diagnostic testing and control of patients with cardiopulmonary deficits
B. Claims include failure to remove endotracheal tube which caused patient injury & was
negligence; multiple use of same syringe violated state policy of quality patient care; failure
to restock the code cart resulted in a substantial evidence finding of proximate cause of
patient’s injuries (brain death)
XI. Chiropractor, p.347
A. A chiropractor is required to exercise the same degree of care, judgment, and skill
exercised by other reasonable chiropractors under like or similar circumstances
B. Poor v. State (not in text)
1. Conspiracy to manufacture and distribute misbranded substance.
2. Introduced misbranded and adulterated drugs into interstate commerce with intent
to defraud.
3. District and appellate courts found chiropractor’s conduct immoral.
4. Chiropractor’s denial, after taking advantage of a plea bargain, that he committed
any of the acts he admitted to in the U.S. district court is disturbing and not
consistent with the integrity expected of persons engaged in a professional
occupation.
XII. Dentistry, p.348
A. Dental malpractice cases are generally related to patients who suffer from
complications of dental procedures.
B. Examples of dental malpractice claims
1. Drill Bit Left in Tooth
2. Failure to Refer
3. Lack of Consent - Removal of tooth without consent
4. Lack of Consent – Removal of tooth without consent
33
C. Failure to Prescribe Antibiotics - Risk of not prescribing antibiotics is that bacteria can
flow through the bloodstream to the heart.
D. Failure to Prescribe Antibiotics - Risk of not prescribing antibiotics is that bacteria can
flow through the bloodstream to the heart.
E. Failure to Wear Protective Gloves
F. Practicing Outside Scope of Practice – Brown v. Belinfante, p.350 - Dentist preformed
several elective cosmetic procedures including a face lift, eyelid revision, and facial laser
resurfacing.
G. Dental Hygienist Administers Nitrous Oxide
H. Failure to Supervise Dental Assistant
XIII. Podiatrist, p.351
A. The legal concerns of podiatrist are similar to those of surgeons, including misdiagnosis
and negligent surgery.
B. Strauss v. Biggs
1. Podiatrist was found to have failed to meet the standard of care required of a
podiatrist and that failure resulted in injury of the patient.
2. Podiatrist, by own admission, stated that his initial incision in the patient’s foot had
been misplaced (He could not find the incision?)
3. Podiatrist acted improperly by failing to refer the patient, stop the procedure after
the first incision, inform the patient of possible nerve injury, and provide proper
postoperative treatment.
XIV. Security, p.351
A. Hospitals have a duty to implement and maintain reasonable measures to protect
patients from the criminal acts of third parties.
B. If an attack or injury to a patient is not foreseeable, the hospital’s actions cannot be the
proximate cause of patient’s injuries.
C. Lane V. St. Josephs’ Regional Medical Center
1. Patient was sitting in emergency department waiting room, when a teenage boy,
D.G., arrived with his mother.
2. After a short time, D.G. walked up to Lane and began to hit her on her right arm and
shoulder.
34
3. Patient Lane’s son-in-law, who had accompanied her to the emergency room,
jumped to her aid and struck D.G., knocking him to the floor.
4. The attack stopped and nothing further happened.
5. Lane suffered some injuries as a result of the attack.
6. The hospital was not held liable for Lane’s injuries.
a. The attack upon Lane by D.G. was unexpected and no other evidence was
designated to the trial court from which it could have concluded that the
specific action of D.G. on the day in question was foreseeable
b. The attack and the injury were not foreseeable, the actions were not the
proximate cause of Lane’s injury, and that the center is entitled to judgment as
a matter of law
D. Hanewinckel v. St. Paul’s Property & Liability, p.351
1. Hospital female employee was attacked by a man in the hospital parking lot
2. Court held hospital breached its duty to employee by failing to patrol the lot
3. Employee was awarded $733,000.
XV. Licensure and Certification of HealthCare Professionals, p.352
A. Recognition by a governmental or professional association that an individuals’ expertise
meets the standards of that group.
B. Some professional groups establish their own minimum standards for certification in
those professions that are not licensed by a particular state.
C. Certification by an association or group is a self regulation credentialing process.
XVI. Licensing Healthcare Professionals
A. Process by which a competent authority grants permission to a qualified individual to
perform certain specified activities that would be illegal without a license.
B. Licensure refers to the process by which licensing boards, agencies, or departments of
the several states, grant to individuals who meet certain predetermined standards, legal
right to practice in a health care profession and to use a specified health care
practitioner’s title.
C. Commonly stated objectives of licensing laws are to limit and control admission to the
different health care occupations and to protect the public from unqualified
practitioners by promulgating and enforcing standards of practice within the
professions.
35
XVII. Suspension and Revocation of License, p.352
A. Licensing boards have authority to suspend or revoke the license of a health care
professional found to have violated specified norms of conduct.
B. Violations includes procurement of license by fraud, unprofessional, dishonorable,
immoral, or illegal conduct, performance of specific actions prohibited by statute; and
malpractice.
XVIII. Multidisciplinary Approach to Patient Care
A. Pain management programs often provide excellent examples of a multidisciplinary
approach to patient care.
B. Health care professionals should consider & discuss the patient perspective & put
themselves in the role of a patient receiving treatment.
XIX. Helpful Advice for Caregivers - Abide by the ethical code of one’s profession &
practice quality care (character and competence).
36
Chapter 13
Information Management and Patient Records
See text case, Proenza Sanfiel v. Department of Health case, pp.359&384 – A five-year
suspension of Sanfiel’s nursing license upheld for disclosing confidential patient information
to media.
I.
Information Management and Communication, p.359
A. Documentation of a patient’s illness, symptoms, diagnosis, & treatment
B. Planning tool for patient care
C. Document communication (such as, progress notes)
D. Protect legal interests of patient, organization, & practitioner
E. Provide database for use in statistical reporting.
F. Continuing education
G. Research
H. Provide information necessary for third-party billing.
II.
Medical Record Contents
A. Personal, medical, financial
B. Admission record- age, address, reason for admission (social security
number/personal health identifier), marital status, religion, health insurance,
and advance directives
III.
IV.
Documentation of Care, p.360 - Documentation includes record entries accuracy,
regular nurse’s charting, for reimbursement, consistent recording of qualitative
observations (vs. charting by exception), and adequate maintenance and timely
completion of records.
Privacy Act of 1974, p.362 - enacted to safeguard individual privacy from misuse of
federal records, to give individual access to records concerning themselves that are
maintained by federal agencies, and to establish a Privacy Protection Safety
Commission.
37
V.
Health Insurance Portability and Accountability Act (HIPAA), p.363
A. Privacy Provisions
1. Patients able to access their records and request correction of errors.
2. Patients must be informed of how personal information will be used.
3. Patient consent for release of information for marketing purposes required.
4. Patients can ask insurers and providers to take reasonable steps to ensure
their communications are confidential.
5. Patients can file privacy related complaints.
6. Health insurers or providers document their privacy procedures.
7. Health insurers or providers designate a privacy officer and train their
employees.
8. Providers may use patient information without patient consent for purposes
of providing treatment, obtaining payment for services, and performing non
–treatment operational tasks of the provider’s business
B. Note Security Provisions Concerning Administrative, Physical and Technical
Safeguards, pp.363-365
VI.
Ownership and Release of Medical Records, p.365
A. Ownership resides with organization or professional rendering treatment
B. Right to privacy
C. Request by patients
D. Failure to release records (can lead to legal action)
E. Requests by third parties (insurance carriers processing claims, physicians, medical
researchers, educators, government, agencies)
F. Privacy exception (psychiatric records, criminal investigation, Medicaid fraud,
substance abuse records)
38
G. Health Insurance Portability & Accountability Act (1996) provides protections for
the privacy, confidentiality & security of patient information.
VII.
Retention of Information, p.368
A. Length of time medical records must be retained varies state to state.
B. See Rodgers v. St. Mary’s Hospital of Decatur, p.369 - Illinois Supreme Court held
that a private cause of action existed under the X-ray Retention Act, & that the
plaintiff stated a claim under the act. The Act provides that hospitals must retain
X-rays and other such photographs or films as part of their regularly maintained
records for a period of five years.
VIII.
Electronic Medical Records (Advantages), p.369
A. Retrieve demographic information and consultants reports as well as lab,
radiology, and other test results.
B. Improve productivity and quality.
C. Reduce costs.
D. Support clinical research.
E. Play a continuous role in education.
F. Allow for interactive computer assisted diagnosis and treatment.
IX.
Electronic Medical Records (Disadvantages), p.370
A. Increased risk of loss of confidentiality and unauthorized disclosure of
information
B. Rapid growth of Internet has led to an explosion of high technology crime and
related illegal activities.
C. Increase in cybercrime has led to a need for high end technology products and
services to combat these problems.
D. Billions of dollars spent annually to protect networks and critical infrastructures
from cyber-based threats.
X.
Medical Record Cases, pp.372-365
A. Moskovitz v. Mount Sinai Medical Center, pp.372-373 - Physician’s alteration of
patient’s record supported punitive damages; shows malice on physician’s part
(falsification of records)
39
B. Humana Hospital Corp. v. Spears Petersen, p.380- accreditation reports are
privileged (JCAHO reports privileged from discovery)
C. Search warrant, p.381 - peer review documents, are not subject to disclosure in
Michigan (Liberman case)
D. Staff privileging documents, pp.382-383 - discoverable in Illinois (May case), but
not discoverable in South Carolina (McGee case)
XI.
Charting Advice, p.384
A. Complete and pertinent information
B. Timely entries
C. Legible entries
D. Clear and meaningful information
E. Complete documentation
40
Chapter 14
Patient Consent, Rights, and Responsibilities
See text case, Matter of Hughes, pp.389&405 – Trial judge’s decision to appoint a temporary
medical guardian for Mrs. Hughes was legally supportable; doubt existed as to whether she
made a fully informed decision to refuse blood if this meant death; concerns a Jehovah’s
Witness patient.
I. Consent, p.389
A. Voluntary agreement by a person who possess sufficient mental capacity to
make an intelligent choice to allow something proposed by another to be
performed on himself or herself.
B. Express consent can take the form of verbal agreement or a written document
authorizing medical care.
C. Implied Consent is determined by some act or silence, which raises a
presumption consent has been authorized (e.g., patient in accident and in
comatose state).
II.
Informed Consent, p.390 – Canterbury v. Spence and the “reasonable man”
standard
A. Legal doctrine where the patient has right to know potential risks, benefits and
alternatives of a proposed procedure.
B. Patient has absolute right to know about and select from available treatment
options.
C. Informed consent is based on the duty of the physician to disclose sufficient
information to enable the patient to evaluate proposed medical or surgical
procedures before submitting to them.
III. Issues
A. Adequacy of consent-Consider what is ordinarily provided by other physicians.
B. Verbal consent to surgery is sufficient.
C. Written consents – See battery consent form elements on pp.391.
D. Special forms of consent
1. Consent for specific procedures- surgery and diagnostic test
41
2. Temporary consent- summer camp
3. Implied consent- car accident, patient unconscious
IV.
Statutory Consent, p.392 - Consent is generally assumed for ambulance care (Good
Samaritan statutes) & emergency departments (when the patient is clinically unable
to give consent)
V.
Physicians, Hospitals and Nurses and Informed Consent, pp.392-397
A. A nurse generally has no duty to advise a patient as to a surgical procedure to be
employed (may confirm with patient that the physician has explained the
procedure).
B. Advise patient as to the risks, benefits, and alternatives to a recommended
procedure (this is the physician’s responsibility).
C. Obtain a patient’s informed consent (nurse may witness that the risks, benefits
and alternatives have been explained).
D. Mathias v. St. Catherine’s Hospital Incorporation, pp.394-395 - Duty to inform
rests with the physician and not the hospital (tubal ligation following a C-section
without a signed consent form).
E. Matthies V. Mastomonaco, pp.393-394 - An elderly woman living alone fell and
fractured her hip and was hospitalized. The orthopedic surgeon decided on a
conservative course of treatment for her hip, bed rest, rather than surgery. Court
held that it is necessary to advise a patient when considering alternative courses
of treatment.
F. Riser v. American Medical Intern, Inc., pp.395-396 The radiologist performed a
procedure not ordered by patient’s physician. The patient died 11 days later and
the plaintiffs claimed that the patient was a poor risk. The district court awarded
damages in the amount of 50,000 for the patient’s pain and suffering and $
100,000 to each child. The court of appeals held that the radiologist breached
the standard of care by subjecting the patient to a procedure that would have no
practical benefit and failed to obtain the patient’s informed consent.
G. Stamford Hosp. v. Vega, pp.396-397 – Trial court Improperly issued an
injunction that permitted the hospital to administer blood transfusions following
childbirth to Vega, a Jehovah’s Witness.
42
VI.
Validity of Consent, p.397
A. Physician should provide as much information about the treatment as necessary
for the patient to understand the risks and consequences of treatment.
B. Courts generally utilize an “objective” or “subjective” test to determine informed
consent.
C. An objective test must show that a “reasonable person” would not have
undergone a procedure if properly informed.
D. A subjective test must determine if the “individual patient” would have chosen
the procedure if fully informed.
E. Ashe v. Radiation Oncology Association, p. 399 - An objective test is preferred in
determining consent. Causation is better resolved on an objective basis (breast
cancer patient became paraplegic after a radiation injury to her spinal cord).
VII.
Who May Consent, p.400
A. Competent patients
B. Guardianship
C. Consent for minors
D. Incompetent patients
E. Spousal consent & Greynolds v. Kurman, pp.403-404 - Patient was not capable of
giving consent and physician should have sought consent from the next of kin
(wife).
VIII.
Right to Refuse Treatment, p.402 - Religious beliefs- Jehovah’s Witnesses have
generally refused the administration of blood or blood products.
IX.
Release Form
A. Patient’s refusal to consent to treatment, for any reason, religion or otherwise,
should be noted in the medical record, and a release form should be executed.
B. Completed release provides documented evidence of a patient’s refusal to
consent to a recommended treatment.
43
X.
Exculpatory Agreements, pp.402-404
A. An agreement that relieves an individual from liability when he or she has acted
in good faith.
B. Exculpatory agreements generally invalid in health care setting
XI.
Proving Lack of Consent, p.404
A. Reasonably prudent person in the patient’s position would not have undergone
the treatment if fully informed.
B. Lack of informed consent is the proximate cause of the injury for which recovery
is sought.
XII.
Informed Consent Claims and Defenses, p.405
A. Consent on behalf of the patient was not reasonably possible.
B. Practitioner reasonably believed that further disclosure of risks could be
expected to adversely and substantially affect the patient’s condition.
XIII.
Informed Consent & Disclosure of Risk
A. Requires physicians to disclose the risks, benefits & alternatives of procedures.
B. Informed consent is based on notions of liberty & individual autonomy.
C. Consent should result from dialogue between the patient & physician.
44
Chapter 15
Patient Rights and Responsibilities
I.
Patient Rights, p.409
A. Right to Refuse or Discontinue Treatment (I.), pp.414-415 -In Harrell v. St. Mary’s Hosp. a
competent person has a right to refuse treatment. A health care provider’s role is to honor
patient’s wishes and not act for the state to assert state interests (pregnant Jehovah’s Witness;
blood transfusion; court order).
B. Right to Refuse or Discontinue Treatment (II,), p. 415 – In Matter of Dubreuil a pregnant
patient refused blood during delivery by C- section for religious reasons. Her estranged
husband gave consent and the trial court concurred. The Florida Supreme Court held a
competent person has a right to refuse treatment if there is a surviving parent to care for minor
children.
C. Right to Designate a Decision Maker, p.417
D. Right to Execute Advance Directives, p.418
E. Discharge, p.422 – In Greer v. Bryant hospital staff was found negligent for not reporting
fetal distress to Bryant, the patient’s physician (failure to override a physician’s decision)
F. Right to Access Medical Records, p.423
G. Know Hospital’s Adverse Events, pp.423-424
H. Need to Participate in all Care Decisions to Help Prevent Medical Errors – a leading cause of
death, pp.409-424 (inclusive of Patient Rights section).
II. Patient Responsibilities, p.424
A. Provide caregivers with information relevant to medical complaints, symptoms, past illness
treatments, surgical procedure, hospitalization, medication & information provided must be
accurate, timely and complete.
B. Oxford v. Upson County Hospital Inc., pp.446-427 - Court of appeals upheld trial court judge’s
instructions to jury regarding causation, ordinary care and comparative negligence (patient
injured by fall after fainting, but had failed to notify hospital staff that she felt dizzy).
C. Tips to Help Prevent Medical Errors, pp. 429-430.
45
Chapter 16
Healthcare Ethics
I.
Ethics, p.433 - Branch of philosophy that deals with values relating to human conduct with
respect to rightness and wrongness of actions and goodness and badness of motives and
ends.
A. Moral philosophy – right and wrong, including values or principles
B. Micro ethics – an individual’s life experiences
C. Macro ethics – a global view of right and wrong
D. Ethics is used to signify:
1. Philosophical ethics – inquiry about conduct
2. Way of life – Judaeo Christian ethics
3. Rules of conduct or moral code – professional ethics
E. Healthcare ethics encompasses many issues like the right to refuse treatment and
making right decisions in difficult circumstances
II.
Morality, P.434 – A Code of Conduct
A. Morality Legislated
1. Laws created to set boundaries for societal behavior
2. Laws are enforced to ensure expected behavior happens
B. “Moral dilemmas” occur when moral ideas of right and wrong conflict
III.
Ethical Theories, pp.434-437
A. Normative Ethics – primarily concerned with establishing standards or norms for
conduct
B. Consequences and Teleologic Ethics – seek the greatest good for the greatest number
(consequences, outcome)
C. Situational Ethics – the ends can justify the means
D. Utilitarian Ethics – a form of consequential ethics
E. Deontological Ethics – duty-based ethics (Immanuel Kant, moral codes & rules)
F. Nonconsequential Ethics – moral decisions on a case-by-case basis
46
G. Ethical Relativism – relative to the norms of one’s culture
IV.
Principles of Healthcare Ethics, pp.437-440 – caregivers often find that difficult decisions
involve choices between conflicting ethical principles
A.
Beneficence – doing good, showing compassion, helping others, etc.
B.
Nonmaleficence – avoid causing harm to patients (“First, do no harm.”)
C.
Justice – fairness in the distribution of benefits & risks (Distributive justice requires
treating all persons equally & fairly.)
D.
Autonomy
1. Right of a person to make one’s own decisions
2. Patient has right to accept or refuse care even if it is beneficial to save his or her
life
3. Autonomy may be inapplicable in certain cases - affected by one’s disabilities, mental
status, maturity, or incapacity to make decisions
V.
Virtue Ethics and Values, p.440
A. Virtue is normally defined as some sort of moral excellence or beneficial quality.
B. Moral value is the relative worth placed on some virtuous behavior.
1. What has value to one person may not have value to another.
2. A value is a standard of conduct.
3. Values are used for judging goodness or badness of some action
C. Pillars of Moral strength (Fig. 16-1, p.441) – courage, wisdom, commitment, compassion,
fairness, honesty, integrity, and respect are examples of the pillars that have value when
addressing difficult healthcare dilemmas.
VI.
Religious Ethics and Spirituality, pp.447-450
A.
Judaism – monotheistic religion based on the Hebrew Bible
B.
Hinduism – polytheistic religion that includes reincarnation
C.
Buddhism – “do good, avoid evil, purify the mind”
D.
Taoism – the interaction of all things
E.
Zen – evolved from Buddhism
47
F.
Christianity – monotheistic religion based on the Old and New Testaments
G.
Islam – monotheistic religion based on the Qur’an
VII.
Secular Ethics, p.450– based on codes developed by societies (Code of Hammurabi)
VIII.
Professional Ethics – standards or codes of conduct established by the members of a
Profession
IX.
Ethics Committee, pp.451-456
A. Hospital Committee - offering objective counsel when there are difficult health care
issues and decisions to be made- resource to patients, families and staff.
B. Committee structured to include wide range of community leaders.
C. Ethics committees analyze ethical dilemmas, advise and educate health care providers,
patients, and families.
D. Its goal is to assist patient and family, as appropriate, in coming to consensus with
options that best meet patient’s goal for care.
E. Encouraged by Quinlan case.
X.
Organizational Ethics
A. Purpose: promote responsible behavior in the decision – making process
B. Recent interest
1. healthcare organizations
2. Result of government regulations like Sarbanes Oxley Act & EMTALA
3. Accrediting agencies like the Joint Commission – improve the quality of care
4. Reasoning and Decision Making, pp.456-457 – ethical decision making involves a
process of deciding the right thing to do when faced with a moral dilemma.
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Chapter 17
Procreation and Ethical Dilemmas
See text case, pp.463&482 – Whole Women’s Health v. Hellerstedt (2016) – SCOTUS determined that
Texas’s law requiring abortion clinics to meet ambulatory surgery center standards and employ only
physicians with admitting privileges at a local hospital are unreasonable regulations; they are an undue
burden on women.
I.
Abortion, p.463
A. Premature termination of a pregnancy
1. Can be classified as spontaneous or induced.
2. May occur as an incidental result of a medical procedure or it may be an elective
decision on the part of the patient
3. U. S. ranks number one in abortion rates in the developed world
B. Right to Abortion, p.464 - Roe v. Wade (1973) gave strength to a woman’s right to privacy
in matters relating to her own body, including how a pregnancy would end. During first
trimester of pregnancy, the decision to undergo an abortion procedure is between the
woman and her physician. During second trimester a state may regulate the medical
condition under which the procedure is performed. During third Trimester a state may
prohibit all abortions except those deemed necessary to protect maternal life or health.
C.
Abortion Review Committee Too Restrictive, p.464-465 - Doe v. Bolton (1973) - Court
struck down four pre-abortion procedural requirements commonly imposed by state
statutes. The requirements are residency, performance of a abortion in a hospital
accredited by Joint Commission, approval by an appropriate committee of the medical
staff, & consultations.
D.
Funding, pp.465-466
1. Not Required for Elective Abortions
a. Beal v. Doe (1977) - The court ruled that it is not inconsistent with the Medicaid
portion of the Social Security Act to refuse to fund unnecessary (although
perhaps desirable) medical services.
b. Maher v. Roe (1977)- States may refuse to spend public funds to provide non
therapeutic abortions for women.
2. Not required for Therapeutic Abortions - Different states not compelled to fund
Medicaid recipients’ medically necessary abortions for which federal
reimbursement is unavailable, but may choose to do so (see Hyde amendment and
Harris v. McRae, 1980).
49
3. Funding Discrimination Prohibited in Arizona – state may not refuse to fund
medically necessary abortion procedures for pregnant women with serious illness
while funding them for victims of rape or incest or to save the woman’s life (Simat
Corp. v. Arizona Health Cost Containment System, 2002)
E. States May Protect Viable Fetus, p.466 - In Colautti v. Franklin (1979) the USSC held that
the state may seek to protect a fetus that a physician has determined could survive
outside the womb. Determination of whether a fetus is viable is a matter for judgment
for the physician.
F. Consent, pp.467-469
1. Danforth v. Planned Parenthood (1976) - It is unconstitutional to require parental
consent for minors under age 18. The statute failed to provide any definitive
guidelines( lacks a reasonable exception).
2. Notice Requirement for Immature Minors Constitutional - In H.L. Matheson (1982)
the court upheld a Utah Statute that required a physician to notify, “if possible”, the
parents or guardian of a minor on whom an abortion was to be performed.
However, a state may not constitutionally legislate a blanket unreviewable power of
parents to veto their daughter’s abortion.
3. In re Anonymous (1987) - Consent not required for an emancipated minor (trial
court decision).
4. Parental Notification not Required - Planned Parenthood v. Owens (2000) - The
Colorado Parental Notification Act of 1998, which required physician to notify
parents of a minor prior to performing an abortion upon her, violates minor’s rights
protected by the U.S. Constitution.
a. The act generally prohibited physicians from performing abortions on an
unemancipated minor until at least 48 hours after written notice has been
delivered to minor’s parent, guardian, or foster parent.
b. The notice requirement lacks an exception.
G. Abortion Counseling, p.469
1. City of Akron v. Akron Center for Reproductive Health (1983) - States cannot
mandate what information physicians give abortion patients, or require that
abortions for women more than three months pregnant be performed in a hospital.
Justice O’Connor advocated the “no undue burden” standard in the dissent.
2. Rust v. Sullivan (1991) - Federal regulations that prohibit counseling and referral by
family planning clinics that receive funds under Title X of the Public Health Service
Act were found not to violate the constitutional rights of pregnant women.
50
H. Restricting Right to Abortion Affirmed, p.469-470
1. Planned Parenthood v. Casey (1992)- court reaffirmed a women’s right to have an
abortion, state’s power to restrict abortions after fatal viability, and the state has
legitimate interest in protecting the women and the fetus.
2. An undue burden to require spousal notification.
3. Not undue burden to require.
a. A woman be informed of nature of abortion procedure and risks involved.
b. A woman be offered information on the fetus and on alternatives of abortion.
c. A woman to give her informed consent before abortion procedure.
d. Parental consent be given for a minor seeking an abortion, providing for a
judicial bypass option if the minor does not wish or cannot obtain parental
consent.
e. There be a 24-hour waiting period before any abortion can be performed.
I.
Viability Test Required, p.470 - Webster v. Reproductive Health (1989) - The statute was
upheld providing that no public facilities or employees should be used to perform
abortions. Physicians should conduct viability tests before performing abortions.
J.
Partial Birth Abortion, pp.470-471
1. In Stenberg v. Carhart (2002) the USSC declared unconstitutional a Nebraska ban on
partial birth abortions using D& E and suction- curettage procedures because the
law lacked an exception to protect the women’s health.
2. Partial- Birth Abortion Ban 2003
a. President Bush signs federal restrictions banning late term abortions
b. 2005 – Bush asked USSC to review appellate court’s decision holding the act
unconstitutional.
c. 2006 – Oral arguments before USSC
d. 2007 – USSC upheld Act (5-4) - It lacks an exception to protect the woman’s
health & bars a procedure Congress found “brutal” and “inhumane” (D&E).
K.
Picketing Physicians, p.472-473: Privacy Issue - Murray v. Lawson (1994); Picketing
physicians’ residencies (Murray – residential privacy is a sufficient public policy interest
to justify injunctive restrictions; speech v. residential privacy; NJSC); Trespass,
obstructing access to abortion clinics (USDC for DC- presence on the property
constituted a trespass)
51
L. Continuing Controversy, p.473
1. Right-to-life advocates v. Pro-choice advocates
2. Employee refusal to participate in abortions, including pharmacy & birth control
(pharmacists – unsettled area, conscience clause issue)
3. Use of force against demonstrators – lack of excessive force is key (Forrester v. City
of San Diego, 1994).
Everything has Changed
Dobbs v. Jackson Women’s Health Organization case – Is the Mississippi law
banning almost all abortions after 15 weeks gestation unconstitutional? No. There
is no constitutional right to an abortion. Roe v. Wade & Planned Parenthood v.
Casey are overruled. Abortion is not mentioned in the Constitution. The right is
not embedded in our history as a country or essential to liberty. The precedent is
overruled (SCOTUS, 2022).
Allowing individual states to determine the legality of abortion potentially creates
an array of hurdles for those seeking medical care and for physicians providing
care. State trigger laws formally outlaw abortion immediately after the repeal of
Roe or 30 days after SCOTUS transmits its judgment (7/26/22). The Texas trigger
law makes performing an abortion a first-degree felony, including life sentences
and a civil penalty of $100,000 per violation. Texas already passed a strict
abortion law in 2021 banning the procedure beyond six weeks of pregnancy and
providing no exceptions for rape or incest.
II.
Sterilization, pp.474-476
A. Elective Sterilization – upheld.
B. Regulation of Sterilization for Convenience- hospitals must have consistent policies,
including conscience clauses.
C. Therapeutic Sterilization – upheld.
D. Involuntary / Eugenic Sterilization acceptable with procedural safeguards (Buck v. Bell,
USSC, 1927).
III.
Wrongful Birth, Life and Conception, pp.476-481
A. Wrongful Birth (Smith v. Coté, NH, 1986- rubella case)
B. Wrongful Life (What is the value of being denied non-life?)
C. Wrongful Conception/ Wrongful Pregnancy (negligent sterilization)
52
IV.
Artificial Insemination, p.481
A. Injection of seminal fluid into a woman to induce pregnancy
B. Includes insemination outside the woman’s body – “test-tube” babies
C. Consent and confidentiality are significant considerations
V.
Surrogacy, pp.481-482 – reproduction whereby a woman agrees to give birth to a child she
will not raise but surrender to a contracted party
A. Surrogate may be the child’s genetic mother or a gestational carrier (embryo implant)
B. Surrogacy contracts are prohibited in some states (invalid contracts)
53
Chapter 18
End-of-Life Issues
I.
Noteworthy Historical Events
A. 1932- 1972 – Tuskegee study of Syphilis
B. 1946 – Military Tribunal for War Crimes
C. 1949 – Nuremberg Trials and International Code of Medical Ethics
D. 1972 – Informed Consent – Canterbury v. Spence - reasonable patient standard
E. 1976 – Substituted Judgment – In the Matter of Karen Ann Quinlan, p.488
E. 1990 – Patient Self-Determination Act and Nancy Cruzan, pp.490-491
F. 1994 – Oregon’s Death with Dignity Act
G. 1996 – HIPAA – Protect patient privacy, confidentiality and security of patient
information
H. 1999 – Kervorkian convicted of 2nd degree murder
I.
2002 – U.S. District Court upholds Oregon’s Death with Dignity Act
J.
2004 – U.S. Court of Appeals upholds Oregon’s DDA
K. 2006 – Supreme Court blocks Bush administration’s attempt to punish doctors who help
terminally ill patients die(protects Oregon’s one-of-a-kind assisted suicide law)
II.
III.
Patient Autonomy, pp.487-490
A.
In re Storer – right of self-determination, p.493
B.
In re Quinlan – right to refuse treatment
C.
Saikewicz, pp.488-489 – court approval to withhold treatment of an incompetent
Constitutional Right to Refuse Care & Legislative Response – Patient Self-Determination Act
of 1990, pp.491-492
A.
Protection of a patient’s right to make decisions
B.
Organizations - required to observe, protect, and promote patient rights
C.
Cruzan v. Director, Missouri Department of Health (1990)
54
IV.
Defining Death, pp.492-493
A. Irreversible cessation of brain function constitutes death.
B. People v. Eulo – determination of brain death is death, p.493.
C. O’Connor – clear and convincing evidence of a patient’s wishes is required terminate life
support.
V.
Do-Not-Resuscitate Orders, p.493-494 – a type of advance directive not to use resuscitative
measures to revive the patient & consented to by patient or his/her agent.
VI.
Withdrawal of Treatment, pp.494-497
A. Decision not to initiate treatment or medical interventions.
B. Conroy, pp.495-496 – specific guidelines
C. Jobes, p.496– artificial nutrition & hydration may be removed.
D. Bouvia case, p.496 – competent patient may refuse life sustaining treatment.
E. Barber, p.496 – physicians withdrew treatment honoring request of patient’s family,
criminal.
charges of murder and conspiracy were dropped.
VII.
Euthanasia, pp.497-500
A. Euthanatos (Gk.) – “good death” or “easy death”
B. Active Euthanasia – intentional commission of an act (suicide)
C. Passive Euthanasia – life-saving treatment is withdrawn or withheld.
D. Voluntary Euthanasia – patient decision to die (Lane v. Candura, p.499-500)
C. Involuntary Euthanasia – a third party makes the decision to terminate the life of an
incurable person.
VIII.
Physician Assisted Suicide, pp.475-478
A. Physician Assisted Suicide – Jack Kevorkian (1990), p.501
B. Kevorkian Convicted of Second-Degree Murder (1999)
C. Oregon’s Death with Dignity Act (1994), pp.501-502
1. Statute and Request
55
2. Gonzales v. Oregon – states can allow physicians to assist in the suicide of their
terminally ill patients (2006), pp.502-504.
D.
Prohibition of Assisted Suicide Ruled Constitutional, p.502- U. S. Supreme Court, in two
unanimous and separate decisions, ruled in 1997 that laws in New York and Washington
prohibiting assisted suicide are constitutional, but states can allow physicians to assist in
the suicide of their terminally ill patients.
1. Quill v. Vacco – not protected by Constitution’s equal protection clause
2. Washington v. Glucksberg – not protected by Constitution’s due process clause
IX.
Advance Directives, pp.504-511 - patient is obligated to make medical preferences known to
the treating physician
A. Living Will, pp.505-506 – guidance about patient’s wishes
B. Healthcare Proxy, pp.509-509 – appoint a healthcare agent to make treatment decisions
in the event of your incapacity.
C. Durable Power of Attorney, p.509 – give another authority to act on your behalf in the
event you become incompetent.
D. Substituted Judgment – attempt to make the decision the patient would have made if
competent.
E. Guardianship, p.511
l. Court declares a person incompetent and appoints a guardian
2. Bush v. Schiavo, p.511 – Terri’s Law ruled unconstitutional (attempt to usurp the
authority of the judiciary and legal guardians to make decisions)
F. In re Martin, p.512 – Spouse’s Guardianship Rights Questioned – Martin’s spouse
provided clear and convincing evidence that he would decline life support given his
medical condition and prognosis; evidence was sufficient to show that the patient’s
spouse was a suitable guardian (Mich. Ct. App. 1994).
X.
Autopsy, pp.511-515 – conducted to determine cause of death, and may resolve legal issues
XI.
Organ Donations, pp.515-517
A. Transplantation is done to treat patients with end stage organ disease who face organ
failure.
B. Uniform Anatomical Gift Act – statute enacted in all 50 states, and allows organ donation
at the time of death, p.516.
1. Hospitals must have & implement written protocols regarding organ procurement.
2. Regulations cover duties of informing families of potential donors.
56
3. Discretion & sensitivity are necessary in dealing with families
4. Educate hospital staff about donation issues to facilitate timely donation &
transplantation
XII.
Research, Experimentation, and Clinical Trials, pp.517-521
A. Institutional Review Board – way to approve and oversee the use of investigational
protocols, pp.518-519.
1. Nuremberg Code & Declaration of Helsinki concern guidelines protecting human
subjects.
2. Follow informed consent guidelines – disclose risks, competent consent, treatment
alternatives, get written consent.
B. Food and Drug Administration – terminally ill patients and access to experimental drugs
not fully approved by the FDA (developing area of the law).
XIII.
Human Genetics, pp.521-523
A. Genetic Information Nondiscrimination Act of 2008 – prohibits discrimination based on
genetic information with respect to health insurance and employment, p.522.
B. Stem Cell Research, pp.522-523 – remains a highly controversial issue.
57
Chapter 19
Legal Reporting Requirements
See text case, Michaels v. Gordon, pp.529&540 - Immunity for reporting suspected child abuse
extended to a psychologist- no finding of bad faith.
I.
Child Abuse, pp.529-532
A. An abused child is one who has suffered intentional serious mental, emotional,
sexual, and /or physical injury inflicted by a family or other person responsible
for the child’s care. Some states extend the child’s care. Some states extend the
definition to include a child suffering from starvation.
B. Reporting requirements- All states have laws to protect abused children.
C. Detecting abuse
D. Good faith reporting
E. Failure to report child abuse – psychologists, nurses, & physicians are typically
mandatory reporters.
II.
Elder (Senior) Abuse, pp.532-534 - any form of mistreatment that results in harm or
loss to an older person.
A. Less likely to be reported than child abuse.
B. National Center on Elder Abuse is directed by the U.S. Admin. on Aging
C. Most states have statutes mandating the reporting of elder abuse.
III.
Communicable Diseases, pp.534-535
A. Reported to protect citizens from infectious diseases.
B. Reporting required by statutes - Most states have mandatory reporting statutes.
C. Acquired immunodeficiency syndrome (AIDS) – a reportable communicable
disease in every state; required reporting is noted on p.534; mandatory testing
of firefighters and paramedics for HIV does not violate Fourth Amendment or
constitutional privacy rights, p.535
IV.
Hospital Acquired Infections
A. Medical errors and infections cause up to 98,000 deaths and hundreds of
thousands of injuries annually in U.S. hospitals.
58
B. Sepsis and pneumonia cause nearly 50,000 deaths and cost more than eight
billion to treat.
C. Affordable Care Act requires participating hospitals to report hospital
acquired infections or face Medicare reimbursement reductions.
D. Hospitals showing improvement will receive more money.
V.
Births & Deaths, p.535
A. Reportable by statute
B. Necessary to maintain census records
VI.
Suspicious Deaths
A. Unnatural deaths must be referred to medical examiner (violent deaths, criminal
activity).
B. The medical examiner determines cause of death & aids with criminal
investigation.
VII.
VIII.
IX.
Adverse Drug Reactions, p.535 – ADRs are unwanted or harmful reactions from the
administration of a drug or drugs thought to be related to the use of the drug(s);
pharmacies must maintain and report ADRs to the FDA.
Physician Competency, pp.536-537 – The Healthcare Quality Improvement Act of
1986 authorizes the National Practitioner Data Bank to collect and release information
on the professional competence and conduct of health care practitioners.
National Practitioner Data Bank
A. Reporting requirements - adverse licensure or professional review actions (30
days or longer)
B. Required queries of data bank information
C. Who should report?
D. Data bank queries can be made by state licensing board, hospitals other than
health care entities.
E. Data bank fee
F. Penalties for failing to report.
59
G. Confidentiality of data bank information
X.
Incident Reporting, pp.537-539
A. Hospital incident reports are discoverable.
B. State reportable incidents include events that resulted in a patient’s serious
injury or death.
C. Reports should be directed to legal counsel for advice & not placed in the
medical record.
XI.
Sentinel Events, pp.539-540
A. Reportable “sentinel events” include events that result in an unanticipated death
or major permanent loss of function.
B. Event is one of the following: suicide, unanticipated death of a full-term infant,
infant abduction, rape, hemolytic transfusion reaction, or surgery on the wrong
patient or wrong body part.
C. Self- reporting is encouraged by the Joint Commission on the Accreditation of
Healthcare Organizations (JCAHO) and events are subject to JCAHO review.
XII.
Root Cause Analysis
A. A process for identifying the basic or causal factors that underlie the variation in
performance, including the occurrence or possible occurrence of a sentinel
event.
B. Critical management and root cause analysis are equivalent to quality
improvement systems and processes.
C. JCAHO expects organizations to do root cause analysis.
D. Provide for disciplinary action.
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Chapter 20
Human Resources
See text case, NLRB v. Shelby, pp.545&589- Employer’s interrogation of nursing facility employees about
union meeting was an unfair labor practice and unlawful interrogation.
J.
Human Resources Roles and Responsibilities, pp.545-548
K. A. Job Description – describes the duties and responsibilities of the employee in a particular job.
L. B. Recruitment and Hiring – involves a job application that gathers information about education,
job history, references, etc.
M. C. Employee References, p.547 – must be adequately scrutinized by employers to avoid
potential liability for negligent hiring.
N. D. Application Process, p.548 – involves verifying the applicant’s qualifications based on the
documentation provided.
O. E. Performance Appraisals – are usually performed annually to assess the employee’s
performance.
II.
Employment at Will, pp.549-550
A. Employment at Will doctrine provides employment is at will of employer or employee.
B. Employment may be terminated by either at any time.
1. For any or no reason
2. Unless a contract in place specifying terms and duration of employment
C. Historically termination of employees for any reason is widely accepted.
III.
Public Policy Issues & Termination, pp.550-551
A. Public Policy
1. Public policy exception to employment at will doctrine provides employees may not
be terminated for reasons contrary to public policy.
2. Public policy originates with legislative enactments.
3. Employment contract
4. Covenant of good faith and fair dealing
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B. Public Policy Issues
1. Age
2. Race
3. Color
4. Religion
5. Sex
6. National origin
7. Pregnancy
8. Filing safety violation complaint
9. Union membership
10. Whistle blowing - reveals wrongdoing to a public entity.
11. Reporting- patient abuse
a. Elder
IV. Termination, pp.552-556
A. Unemployment Compensation, pp.556&557- denial for resignation and termination for cause
(general rule)
B. Employment Disclaimers – at-will status noted in employee handbook.
C. Job Description – not a contract
D. Termination for Cause – employment contract
E. Violation of Non – Smoking Policy – for cause termination
F. Termination and Financial Necessity – not a breach of an employment contract
G. Hostile Attitude – good cause termination
H. Improper Billing Practice – good cause termination
I. Poor Work Performance – good cause termination
J. Alcoholism – termination not discriminatory
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IV. Wrongful Discharge, pp.557-558
A. Tort- wrongful discharge
B. Contract - wrongful discharge
C. Punitive Damages- tort law only (clear and convincing evidence)
V. Retaliatory Discharge, pp.558-560 – In Dalby v. Sisters of Providence on p.559, a pharmacy
technician stated a cause of action for wrongful discharge and intentional infliction of
emotional distress. The technician made a good faith report of hospital’s noncompliance
with the drug inventory and documentation requirements.
VI. Fairness: The Ultimate Test, pp.562 - Bad faith and inexplicable terminations are subject to
court scrutiny.
VII. Effective Hiring Practices, pp.562-563 – Communicate clearly.
VIII.
Employee Rights, pp.562-567
A. Equal Pay Act (EPA) of 1963 – passed to address wage disparities based on gender.
B. Refuse to Participate in Care – conscience clauses upheld.
1. Abortions
2. Pharmacists’ Refusal to Fill Prescriptions – See pp.563-564.
C. Suggest Changing Physicians, p.565 – Deerman v. Beverley Cal. Corp. – North Carolina court
of appeals held the nurse stated a claim for wrongful discharge in violation of public policy (LTC
nurse advised family to consider changing physicians)
D. Kirk v. Mercy Hospital Tri-County, p.566 - Nursing Practice Act (NPA) of Missouri provides a
public policy mandate that nurses have a duty to provide the best possible patient care (hospital
charge nurse was terminated for reporting a potential wrongful death to the patient’s family)
E. Freedom from Sexual Harassment, p.565 – quid pro quo and hostile environment
F. Whistleblowing, pp.565-567 – reveals wrongdoing (illegal, fraudulent activities) in the
organization to a public entity.
VIII.
I.
Employee Responsibilities, pp.567-571 – Examples are to maintain confidentiality, adhere to
safe practices, adhere to professional standards, and report patient abuse.
Labor Relations, p.571
A. Relationships between employees and employers are regulated by state & federal laws.
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B. Federal laws generally take precedence over state laws when there is conflict between state
and federal laws.
C. State laws generally applicable when more rigid than federal laws
II.
Department of Labor - Functions are to promote welfare of wage earners, improve working
conditions, and advance opportunities for profitable employment.
III.
Unions & Healthcare Organizations, p.572
IV.
National Labor Relations Act
A. Enacted 1935 to govern labor-management relations of business firms engaged in interstate
commerce.
B. Act defines certain conduct of employers & employees as unfair labor practices- provides for
hearings on complaints that such practices have occurred.
C. Act modified by Taft – Hartley amendments in 1947 and Landrum – Griffin amendments in
1959.
V.
National Labor Relations Board
A. NLRB enforces and administers the NLRA.
1. Has jurisdiction over matters involving proprietary & not for profit health care
organizations
2. Agency independent of Department of Labor which is responsible for preventing &
remedying unfair labor practices by employers and large organizations
B. Elections, p.573 - NLRA sets out procedures by which employees may select a union as
their collective bargaining representative to negotiate employment and contract
matters.
C. Unfair labor practices, pp.573-574
1. No discrimination for being a union member.
2. Must bargain in good faith.
D. Limitations on number of bargaining units
1. NLRB rule allowing hospital workers to form up to eight bargaining units
2. Upheld by U.S. Supreme Court
VI.
Norris-Laguardia Act, pp.574-575
A. Aimed at reducing number of injunctions to restrain strikes and picketing.
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B. Sets procedures for handling labor disputes.
C. Creates board of inquiry if a dispute threatens to interrupt health care.
D. Board’s findings provide framework for arbitrator’s decisions.
VII.
Fair Labor Standards Act, p.575 - Establishes minimum wages, maximum hours of employment,
overtime pay provisions, exempt employee’s provision, work week options.
Civil Rights Act of 1964, pp.575-576 - Prohibits employers and state & local governments from
discrimination in employment in any business on basis of race, color, religion, sex, or national
origin.
IX.
Occupational Safety and Health Act, pp.520-523
A. Sets and enforces safety standards.
B. Provides training, outreach, and education.
C. Establishes partnership between employers and employees.
D. Encourages continual improvement in workplace safety and health.
E. An employer can be liable for damages suffered by employees from exposure to dangerous
conditions that violate OSHA standards.
X.
Rehabilitation Act of 1973, pp.578-579
A. Protection for handicapped employees
B. Applied to public and private organizations.
C. Requirement to perform self-evaluation of compliance.
D. Jobs must not be designed to eliminate hiring of disabled persons.
XI.
Family and Medical Leave Act (FMLA)
A. Enacted to provide employees temporary medical leave if particular situations occur.
B. Covered employers must grant eligible employees up to 12 weeks of unpaid leave during
any 12-month period.
C. Leave granted for certain circumstances.
1. Birth and care of employee’s child
2. Placement of adopted or foster child with employee
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3. Care of immediate family member (spouse, child, or parent) with serious health
conditions
4. Inability to work because of serious health condition.
D. It’s illegal to terminate health insurance coverage for an employee on FMLA leave.
E. Following FMLA leave, an employee’s job or equivalent must be restored.
XII.
State Labor Laws, pp.579-580
A. Union Security Contracts
1. Closed shop contract – particular union
2. Union shop contract – union membership
3. Some state statutes forbid such contracts and have right to work laws which protect
everyone’s right to work.
4. Wage and hour laws- higher rate applies (state or federal)
B. Child Labor Acts
1. Working papers required
2. Forbids employment of minors at night
3. Prohibits minors from operating certain machinery.
XIII.
Worker’s Compensation, pp.580-581 - based on employer-employee relationship and not
negligence
XIV.
Labor Rights of Employees
A. Organize and bargain collectively.
B. Solicit and distribute union information.
C. Picket
D. Strike
E. Concomitant responsibility to perform work duties properly.
XV.
Management Rights, pp.581-583
A. Receive a strike notice.
B. Hire replacement workers.
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C. Restrict union activity.
D. Prohibit union activity during working hours.
E. Prohibit supervisors from participating.
XVI.
Patient Rights During Labor Disputes
A. Patient rights take precedence over labor management rights.
B. Patients have right to privacy and well-being
XVII. Administering Collective Bargaining Agreement, pp.528-529
A. Administered in good faith.
B. Arbitration – binding decision
XVIII.
Affirmative Action Plan, pp.583-584
A. Prohibits discrimination on basis of age, race, color, religion, sex, national origin.
B. Affirmative action program includes:
1. Collection and analysis of data on the race and sex of all applicants for employment
2. Non-discrimination clause in manuals
3. Use of data to show compliance with the law
XIX.
Discrimination in the Workplace, pp.584-589
A. Age: Discrimination in Employment Act of 1967, p.584
1. Promotes employment
2. Prohibits discrimination based on age, hiring, discharge, pay, term, conditions and
privileges of employment
B. Disability: Americans with Disabilities Act of 1990, pp.584-585
1. Review and revise job descriptions for compliance
2. Bring physical environment into compliance
3. Post notice describing purpose of ADA
4. Reasonable accommodation required
C. Other
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1. National Origin –See pp.585-586 & the Woodbine Health Center settlement.
2. Pay Discrimination – Equal Pay Act (1963), p.586.
3. Pregnancy Discrimination – Pregnancy Discrimination Act (amendment to Civil Rights Act
of 1964)
4. Race Discrimination (CRA of 1964), pp.587-588
5. Religious Discrimination – reasonable accommodation
6. Sex Discrimination – CRA of 1964 and sexual harassment- hostile environment and quid
pro quo
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Chapter 21
Managed Care and National health Insurance
See text case, Shea v. Esensten, pp.595&609 - Financial incentives that affect a physician’s decision to
refer patients to specialists are material and require disclosure (patient died from a heart attack; had
cardiac symptoms and family history of cardiac problems; PCP didn’t refer to cardiologist).
I. Managed Care & Models of Managed Care Organizations (MCOs), pp.595-596 – Managed
care is a shift from FFS and has existed for decades. MCOs limit provider choice and require
prior authorization for services.
A. Health Maintenance Organization – financing and delivery of prepaid services
B. Preferred Provider Organizations - discounts for volume
C. Exclusive Provider Organizations - like HMOs but under insurance law
D. Point of Service Plans – go outside network by paying more.
E. Experience Rated HMOs – employer pays based on its utilization.
F. Specialty HMOs- like dental and mental health
G. Independent Practice Associations – negotiate for physicians with third party payers.
H. Group Practice – specialty specific or primary care and specialists
I.
Group Practice Without Walls – share administration and management
J.
Physician Hospital Organizations – joint venture
K. Medical Foundations – negotiate for physicians with third party payers.
L. Management Services Organizations – administration and management services for
physicians
M. Vertically Integrated Delivery System – provides physician and hospital services to
patients.
II.
Important Aspects of Managed Care Arrangements, pp.597-599
A. Horizontal Consolidations – same business and level (community hospitals)
B. State Laws – National Association of Insurance Commissioners Model HMO Act
C. Case Management Firms – catastrophic cases
D. Third Party Administrators – link between employer and insurer
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E. Utilization Review
1. Prospective Review – precertification
2. Concurrent Review – processes of care
3. Retrospective Review – patterns of care
4. Utilization Management Firms – like TPAs
5. Negligent Utilization Review Decisions – Wickline v. State of California, p.598 –
MCOs could be liable for utilization review process failures that cause patient Injury.
F. Liability for Nonparticipating Hospitals – corporate negligence theory
III.
Employee Retirement Income Security Act of 1974, pp.599 – regulates employee
welfare and benefit plans (See Rush case, pp. 578-579 – USSC upheld Illinois HMO act
allowing insured patients to enforce rights via independent physician review; not
preempted by ERISA)
IV.
Managed Care and Legal Actions, pp.600-602
A. Open Enrollment – annual & open for a minimum of 30 days
B. Emergency Care – covered if an emergency.
C. Benefits Denials – See Katskee case, pp.601-602 - Breast – Ovarian cancer syndrome
held to be covered as an illness under the terms of the insurance contract.
V.
Antitrust, pp.581-583
A. Price Fixing - see Maricopa case, p.603- Price fixing by competitors is a per se violation
(physicians had no financial stake in the venture)
B. Market Power – raises antitrust implications.
1. Product Market – MCO continuum (managed FFS to HMO)
2. Geographic Market – service area
C. Provider exclusion could be a boycott as in the Weis, Wilk, or Federation of Dentists
cases (not in the text).
D. Antitrust and Market Share- see Healthcare, Inc. v. Health Source Inc. case, pp.603-604
- competition between HMOs; Health Source’s exclusive agreements with physicians
didn’t violate the Sherman Act; a vertical arrangement of exclusivity and not a boycott;
involved in only 25%of PCP’s; had an opt out clause (lower capitation).
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VI.
National Health Insurance, pp.604-608
A. Patient Protection and Affordable Care Act (ACA) – See major reforms and provisions at
pp.604-607.
B. Court Challenges and Rulings, pp.607-608
1. NFIB v. Sebelius – The individual mandate is upheld as within Congress’s enumerated
power to “lay and collect taxes.”
2. DHHS v. Florida, et al. – The “Federal Government may not compel the States to enact
or administer a federal regulatory program” as in the Medicaid expansion of the ACA.
3. King v. Burwell – Enrollees receiving insurance coverage via the Federal Exchange may
qualify for subsidies under the ACA (not limited to enrollment through a State
exchange).
C. Act Titles – See major provisions at pp.584-586.
VII.
Veterans Care, p.608 – The Veterans Health Administration provides healthcare
benefits for over 8.76 million veterans at more than 1,700 sites.
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Chapter 22
Professional Liability Insurance
See text case, LaMure, pp.613&620- The malpractice insurer was not required to indemnify a physician
for liability resulting from the sexual assault of a minor (constituted a criminal act and a policy exclusion)
I.
Insurance Policies, pp.613-614
A. Insurance is a contract that creates legal obligations on the part of both the insured and
insurer.
B. Insurer agrees to assume certain risks of the insured for consideration or payment of a
premium
C. Under terms of an insurance policy, insurer promises to pay specific amount of money if
specified event takes place.
II.
Insurance Policy Provisions, p.614
A. Identification of the risk covered.
B. Specific amount payable
C. Specific occurrence
III.
Insurance: Risk Categories
A. Risk of property loss or damage (home and contents, for example)
B. Risk of personal injury or loss of life (AD &D, disability or life insurance are examples)
C. Legal liability (being sued)
IV.
Insurance Policy Provisions, p.614
A. Occurrence- incidents arising during a policy year (reporting time doesn’t matter)
B. Claims made- only claims made or reported during the policy year (instituted during
year)
C. Tail coverage- uninterrupted extension of an insurance policy period
D. Umbrella- cover awards over the amount provided in the basic policy coverage.
V.
Insurance Policy Provisions Continued
A. Insurance Agreement- will pay on behalf of insured.
B. Defense and Settlement- will defend.
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C. Policy Period- stated in the insurance contract.
D. Amount Payable- up to the maximum limits stated in the policy.
E. Conditions of the Policy- notice of occurrence, notice of claim, etc.
VI.
Conditions of Insurance Policies, pp.615-616
A. Assignment
B. Subrogation
C. Note other conditions.
VII.
Liability Insurance
A. Purpose of liability insurance is to spread risk of economic loss among members of a
group who share common risks
B. As risk increases, premiums increase to cover associated risks.
C. Premiums are placed in a shared risk pool, and funds are drawn to cover costs of
lawsuits
VIII.
Liability of the Professional, pp.616-617
A. Insurance coverage especially important if caregiver is working
B. Examples
1. As a volunteer at a clinic or health fair not sponsored by his or her employer
2. As an independent contractor providing a service in a patient’s home
3. For an independent agency or registry
4. For an organization that is covered by an insurance policy that has an exclusionary
provision by which that insurance company disclaims liability for a professional’s
malpractice actions brought against insured organization
IX.
Medical Liability Insurance, pp.618-619
A. Covered Claims – Insuring clause provides payment on behalf of insured if an injury
arises from malpractice, error or mistake; and acts or omissions on part of the insured
during policy period.
B. Common Risk Covered – varies according to policy, but typically including torts like
negligence, assault and battery as a result of failing to obtain consent, libel and slander,
and invasion of privacy for betrayal of professional confidence.
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X.
Protecting the Organization, pp.619-620
A. Self-insurance and reinsurance concept, p.619
B. Trustee coverage- directors and officers liability insurance, p.619
C. Mandated medical staff insurance coverage and managed care organizations
applications requiring set minimum liability limits, pp.619-620.
D. Investigation and settlement of claims like use of a claims adjuster to settle and avoid
legal action, p.620.
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