THE TEXAS
MEDICAL JURISPRUDENCE
EXAMINATION
A
SELF-STUDY GUIDE
by
William J. Winslade, Ph.D., J.D.
James Wade Rockwell Professor of Philosophy in Medicine
Amy L. McGuire, J.D.
Jennifer S. Bard, J.D., M.P.H.
Cheryl Erwin, J.D., Ph.D.
Institute for the Medical Humanities
The University of Texas Medical Branch
Galveston, Texas
Copyright © 1986, 1987, 1988, 1989, 1990, 1992, 1994, 1997,2000,2002 by
The University of Texas Medical Branch at Galveston
TABLE OF CONTENTS
ACKNOWLEDGEMENTS
i
INTRODUCTION
x
HUMAN RESOURCES LAW
_
SECTION 1: ADULT AND CHILD CARE
Child Care Facilities and Placement of Children
Adult Day Health Care
1
1
1
4
SECTION 2: ASSISTANCE FOR NEEDY AND ELDERLY PERSONS
............................................................................................... 5
Rights of the Elderly
5
Reports of Abuse, Neglect, or Exploitation of Elderly and Disabled
Persons
8
Medical Assistance to Needy Persons
10
Protective Services for the Elderly
II
SECTION 3: NURSING HOME RESIDENTS
13
Rights of Nursing Home Residents
13
Abuse and Neglect Reporting Requirements for Nursing Homes
14
Information Required from the Person Reporting Abuse and Neglect
............................................................................................... 15
Inspections and Medical Examination
16
FAMILY LAW
16
SECTION 4: ABUSE AND NEGLECT OF CHILDREN
17
Persons Required to Report
17
Matters to Report; Appropriate Agency; Contents of Report
17
Confidentiality and Disclosure ofInformation
18
Immunities
18
Failure to Report
18
Examination of Abused or Neglected Children
18
Abused or Neglected Children May Have Medical Records Released
............................................................................................... 19
Abandoned Newborns
19
Sale or Purchase of Child
21
Sterilization (Minors and Mentally Incompetent Persons)
22
Female Genital Mutilation
22
SECTION 5: CHRONICALLY ILL AND DISABLED CHILDREN
Chronically III and Disabled Children's Services Act
23
23
SECTION 6: VARIOUS AFFIRMATIVE DUTIES TO NEWBORNS .... 24
11
Protecting the Eyes of Newborns
24
Newborn Screening for Phenylketornuria, Other Heritable Diseases,
and Hypothyroidism
25
Testing for Hearing Loss in Newborns and Children
25
SECTION 7: ABORTION
Background
Right Not to Perform Abortions
Rights of a Living Child After an Abortion or Premature Birth
Termination of Parent-Child Relationship After Abortion
Living Child After Abortion
Provisions of More Than 300 Abortions Requires Licensure as an
Abortion Facility
Parental Notification of Abortion
MENTAL HEALTH LAW
SECTION 8: MENTAL HEALTH LAW
Definitions
Voluntary Inpatient Mental Health Services
Involuntary Mental Health Services
Court-Ordered Extended Mental Health Services
Rights of Patients
Right to Mental Health Record
Request by Patient to View Mental Health Record
Minor Patient Bill of Rights
Independent Evaluation
Administration of Psychoactive Medication
Electroconvulsive Therapy
Authorized Disclosure of Confidential Information Other Than in
Judicial or Administrative Proceeding
Authorized Disclosure of Confidential Information in a Judicial or
Administrative Proceeding
Revocation of Consent
Transporting Mentally III Persons Under Emergency Detention
Without a Protective Custody Order
Transportation of Mental Health Patients After Detention
Authority to Have Escaped Mental Health Patient Taken Into
Custody and Returned
Consent to Treatment for Intermediate Care Facilities for Mentally
Retarded Patients
Disputes Involving a Patient's Declaration for Mental Health
Treatment
Miscellaneous
SECTION 9: CHEMICAL DEPENDENCy
Commitment of Chemically Dependent Persons
iii
26
26
27
27
27
28
28
28
33
34
34
34
39
53
53
55
56
56
57
58
60
62
63
64
64
65
66
67
71
72
73
73
State Hospitals/Chemical Dependency Treatment
Protective Custody Pending a Commitment Hearing
Prohibition Against Illegal Remuneration
75
75
75
SECTION 10: ABUSE AND NEGLECT OF MENTAL HEALTH PATIENTS
............................................................................................... 76
Reports of Abuse and Neglect or of Illegal, Unprofessional or
Unethical Conduct
,..
76
Sexual Exploitation Cause of Action
76
Sexual Exploitation by Mental Health Services Provider
77
DRUG LAW
78
SECTION II: DRUG LAW
80
Food, Drug, and Cosmetic Act
80
Laetrile
86
Dimethyl Sulfoxide
86
Controlled Substances Act
87
Official Prescription Form
95
Use of Federal Drug Enforcement Number and Liability for Misuse
............................................................................................... 97
Texas Pharmacy Act
97
Drug Treatment Program-Narcotics
99
Authority to Supply Drugs
99
Donation of Unused Prescription Drugs to Charitable Medical Clinics
............................................................................................... 99
100
Notice of Employee Drug Testing Policies
Reporting Drug Overdoses
100
PUBLIC HEALTH LAW
SECTION 12: AUTOPSIES AND INQUESTS ON DEAD BODIES
Autopsies
Inquests
Reporting the Death of a Child 12 Months Old or Younger
10 I
102
102
104
.105
SECTION 13: COMMUNICABLE DISEASE PREVENTION AND CONTROL
............................................................................................... 106
Definitions
106
Reporting and Treatment of Sexually Transmitted Diseases
106
Duty to Instruct
107
Reporting of Communicable Diseases-Generally
107
Confidentiality
107
Contagious Disease Exposure (Emergency Medical Personnel,
Fire Fighters, Peace Officers)
110
Rabies
110
Tuberculosis
110
Cancer
110
iv
SECTION 14: HlV, AIDS, AND HEPATITIS
Testing for AIDS and Related Disorders
Informed Consent for HIV Testing
Testing for Accidental Exposure to Hepatitis B or Hepatitis C
Counseling Requirements for Positive HlV Test Results
Prenatal Testing
Confidentiality
Penalty for Breaching Confidentiality of HIV Test Results
Partner Notification Program for HIV Infection
HIV-Infected Health Care Workers
Blood-borne Pathogen Control
III
III
113
114
115
115
117
119
120
121
124
SECTION 15: VARIOUS REPORTING REQUIREMENTS AND
AFFIRMATIVE DUTIES
Gunshot Wounds
Spinal Cord Injuries
Birth Defects
Epidemiological or Toxicologic Investigations
Use of Automated External Defibrillators
125
125
125
125
126
126
SECTION 16: IMMUNIZATIONS
Requirements in Texas Elementary and Secondary Schools and
Institutions of Higher Education
Immunization Requirements for Nursing Homes
128
128
130
131
SECTION 17: ANATOMICAL GIFfS
Persons Who May Execute an Anatomical Gift
131
Persons Who May Become Donees and Purposes for which Anatomical
Gifts May be Made
132
Requirements for Gift or Donation
132
Time of Death
133
Liability
133
Eye Tissue
133
Kidney Donation by a Mentally Retarded Person
134
Donated Organs Offered to Texas First
135
SECTION 18: ASSISTED REPRODUCTION
Artificial Insemination
Oocyte Donation
Embryo Donation
136
136
136
137
SECTION 19: VITAL STATISTICS
Birth Certificates
Death Certificates
Penalties
137
137
138
138
v
MEDICAL DECISION-MAKING
139
SECTION 20: CONSENT FOR MEDICAL TREATMENT
140
Consent for Medical Treatment
140
Consent for Emergency Care
140
141
Incapacitated Patients and Surrogate Decision-Making
Exceptions
142
Surrogate Consent for Medical Treatment
142
Prerequisites for Surrogate Consent
143
Liability for the Cost of Medical Treatment Provided as a Result of
Surrogate Consent
144
144
Limitations on Surrogate Liability
SECTION 21: END OF LIFE DECISION MAKING
Defining Death
Patient Self-Determination Act of 1990
Suicide and Assisted Suicide
Advance Directives: General Provisions
Directive to Physicians
Out-of-Hospital Do Not Resuscitate Orders
Medical Power of Attorney
144
145
146
148
148
154
163
176
SECTION 22: CONSENT FOR MINORS
Who May Consent to Medical Treatment of a Minor
Who May Give Informed Consent for Immunization of a Minor
Consent for Minors' Admission to a Mental Hospital
Consent to Chemical Dependency Treatment for Minors
("1oJo's Law")
182
182
184
185
MEDICAL RECORDS CONFIDENTIALITY
SECTION 23: PROTECTED HEALTH INFORMATION
Definitions
Exemptions
Compliance with Federal Regulations-HIPAA
Permitted Disclosures
Prohibited Acts
Enforcement and Penalties
SECTION 24: OTHER CONFIDENTIALITY PROVISIONS
Emergency Management Information is Confidential
Patients' Medical Disclosure Authorization to Hospital Must be
Separate from Medical Consent
Access to a Child's Medical Records by Non-parent
MEDICAL PRACTICE
SECTION 25: TEXAS MEDICAL PRACTICE ACT
vi
185
187
187
187
188
188
189
191
192
192
192
192
193
193
195
Findings and Purposes
Definitions
Texas State Board of Medical Examiners
Construction ..
Licensure of Physicians
Grounds for Denial of License or Disciplinary Action
Unlawful Practices and Penalties
Reporting by Medical Peer Review Committee or Physicians
Peer Review Confidentiality
Report of Convictions
Reports and Data From Insurers
Disciplinary Action
Physician Profiles Made Available to the Public
Physician Credentialing
Continuing Medical Education
Regulation of Out-of-State Physicians
Regulation of Anesthesia in Certain Outpatient Settings
PhysicianlPatient Communication
The Physician's Duty to Release Medical Records
195
196
197
198
199
208
212
213
215
217
217
218
221
222
225
227
227
229
233
SECTION 26: MEDICAL EDUCATION AND RURAL HEALTH CARE
............................................................................................... 234
State Medical Education Board
234
State Rural Medical Education Board
234
Rural Communities Health Care Investment Program
234
SECTION 27: MEDICAL PROFESSION GENERALLy
235
Revocation and Suspension of License for Drug-Related Felony
Conviction
235
Suspension or Loss of License for Failure to Pay Child Support
235
Soliciting Patients
236
Restriction on Bidding and Advertising
236
Deceptive Advertising
237
Time Frame for Submitting Provider Bills
238
Billing Information
238
Isolated Billing Errors
239
Statute of Limitations for Civil Fraud and Breach of Fiduciary Duty
............................................................................................... 239
Certain Volunteer Health Care Providers Immune from Civil Liability
............................................................................................... 239
Referrals to Occupational Therapists Permitted
241
Use of Surgical Assistants
241
MEDICAL BUSINESS LAW
SECTION 28: FORM OF PRACTICE
Medical Business Law
vii
242
243
243
Health Maintenance Organization (HMO)
244
Health Maintenance Organization-Patient Protection Rules
247
Preferred Provider Organization (PPO)
250
Use of Osteopathic Hospital by Health Maintenance and Preferred
Provider Organizations
25 I
Jointly Owned Entities Formed by Physicians and Podiatrists
251
Physicians May Form Certain Business Associations with Optometrists
................................................................................... 252
Business Entities Consisting of Mental Health Professionals and
Non-Physicians
252
SECTION 29: BUSINESS AGREEMENTS
Disclosure of Agreements for Payment of Laboratory Tests
Physician Covenants Not to Compete
254
254
254
SECTION 30: HEALING ART IDENTIFICATION ACT
Purpose
Exception
Definition
Identification
Violation
Non-applicability
255
255
255
255
255
257
258
INSURANCE LAW
258
SECTION 31: MEDICAL LIABILITY AND INSURANCE IMPROVEMENT
ACT
259
Malpractice Claims
259
Informed Consent
262
Insurance Claim Fraud
264
Physician Expert Witness May be Licensed Anywhere in the U.S .
............................................................................................... 267
SECTION 32: PATIENT CARE AND INSURANCE
267
Adverse Utilization Review Determinations Must Include Notice of
Right of Appeal
267
Health Maintenance Organization Appeals and Complaints
268
Confidentiality of Utilization Review Concerning Mental Health
Records
269
SECTION 33: BUSINESS ASPECTS OF INSURANCE
Silent PPOs are Prohibited
Joint Negotiation by Physicians with Health Benefit Plans
CRIMINAL LAW
SECTION 34: CRIMINAL LAW
269
269
270
275
276
Vlll
Misdemeanors
Felonies
276
277
WORKERS' COMPENSATION
SECTION 35: WORKERS' COMPENSATION
Definitions
Medical Services
Approved Doctors
Employment of a Medical Advisor and Confidential Information
Sanctions
Selection of Doctor
Required Reports and Records by Health Care Provider
Payment of Health Care Provider
Required Medical Examinations
Notice of Injury to Employer
277
278
278
279
280
280
282
282
283
284
284
285
MISCELLANEOUS
285
SECTION 36: MISCELLANEOUS
286
Blood Alcohol in the Case of an Arrested Motor Vehicle Driver. 286
Physician Prescribing Alcohol
287
Hospital Emergency Services
289
Emergency Medical Services (EMS)
290
Social Security Number of Licensee or Applicant Kept Confidential
.............................................................................................. 293
Appointment of a Third Party as Guardian for Incapacitated Persons
............................................................................................... 293
SELF-STUDY QUESTIONS
295
SUGGESTED FURTHER READINGS
360
ix