Chapter 5
Ethical and Legal Implications of
Practice
Copyright © 2013, 2009, 2003, 1999, 1995, 1990, 1982, 1977, 1973, 1969 by Mosby, an imprint of Elsevier Inc.
Learning Objectives
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Summarize the philosophical foundations of
ethics.
Explain what constitutes an ethical dilemma and
how they arise in health care.
Describe how professional codes of ethics apply
to ethical decision making.
Explain how traditional ethical principles are
useful in resolving ethical dilemmas.
Copyright © 2013, 2009, 2003, 1999, 1995, 1990, 1982, 1977, 1973, 1969 by Mosby, an imprint of Elsevier Inc.
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Learning Objectives (cont.)
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Describe the information that should be
gathered before making an ethical decision.
Explain how the systems of civil and criminal
law differ.
Describe what constitutes professional
malpractice and negligence.
Explain how a respiratory therapist can
become liable for wrongful acts.
List the elements that constitute a practice
act.
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Learning Objectives (cont.)
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Explain how licensing affects legal
responsibility and liability.
Describe how changes in health care delivery
have shaped the ethical and legal aspects of
practice.
Summarize the basic elements of the Health
Insurance Portability and Accountability Act of
1996 (HIPAA).
Describe the role of advance directives and
living wills in health care.
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Philosophical Foundations of Ethics
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Ethics has its origins in philosophy - the love
of wisdom & the pursuit of knowledge
Ethics is primarily concerned with the
question, “How should we act?”
Ethics represents commitment to “respect
humanity in persons.”
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Code of Ethics
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Code of ethics : Essential part of any
profession claiming to be self-regulating
AARC has Statement of Ethics & Professional
Conduct
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This code seeks to establish parameters of
behavior for members of profession.
(See Box 5-1)
Moral obligations impose ethical duties on
therapists
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Tools of cross examination cited in legal
proceedings
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Ethical Theories & Principles
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Autonomy
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Principle acknowledges patients’ personal liberty
& their right to decide their own course of
treatment
Basis for “informed consent”
Under this principle, any use of deceit to get
patient to reverse decision to refuse treatment is
considered unethical
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Ethical Theories & Principles
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What does the principle of autonomy allow patients
to do?
A. have an attending physician decide their
course of treatment.
B. have the patient’s family decide their course of
treatment.
C. to allow the patient to decide their own course
of treatment.
D. Force the patient to have their family member
sign a consent form for their treatment.
Copyright © 2013, 2009, 2003, 1999, 1995, 1990, 1982, 1977, 1973, 1969 by Mosby, an imprint of Elsevier Inc.
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Ethical Theories & Principles (cont.)
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Veracity
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Principle binds health care provider & patient to be
truthful
Problems w/ veracity center around issues w/
benevolent deception (withholding truth from
patient for his or her own good)
In most cases, telling truth is best policy
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Ethical Theories & Principles (cont.)
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Nonmaleficence
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Principle obligates health care providers to avoid
harming patient & to actively prevent harm when
possible
Problems occur when treatment has serious side
effects or “double effect”
Copyright © 2013, 2009, 2003, 1999, 1995, 1990, 1982, 1977, 1973, 1969 by Mosby, an imprint of Elsevier Inc.
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Ethical Theories & Principles (cont.)
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Beneficence
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Raises “do-no-harm” requirement to higher level
Requires health care workers to contribute to
health & well-being of their patients
Dilemmas in this domain have led to development
of “advanced directives”
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Ethical Theories & Principles (cont.)
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Confidentiality
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Requires health care workers to respect patient’s
right to privacy
Qualified rather than absolute ethical principle
In certain situations, health care workers are
permitted to share patient’s medical history w/
others
Risks of inadvertent disclosure of patient’s
protected health information (PHI) has increased
exponentially w/ advent of social networking sites
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Which poses the newest, most contemporary risk
of violating the patient’s right to confidentiality?
A. staff meetings
B. healthcare worker’s use of social networking
sites.
C. meeting with the patient’s family members.
D. medical conferences
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Ethical Theories & Principles (cont.)
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Justice
Involves fair distribution of care
Balance must be found between health care
expenses & ability to pay
Rationing of health care services calls for “distributive
justice”
Compensatory justice calls for recovery of damages
incurred from medical malpractice
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Less than 2% of healthcare costs are related to medical
malpractice or negligence lawsuits
Costs represent little, if any, impact on cost of healthcare
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Ethical Theories & Principles (cont.)
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Role Duty
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Practitioners have duty to understand limits of role
& to practice w/ fidelity
Respiratory therapists must not perform duties
outside defined role
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Ethical Viewpoints & Decision
Making
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Formalism
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Viewpoint relies on rules & principles
Rules function apart from consequences of a
particular act
Act: justifiable if it upholds applied rules or
principles
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Ethical Viewpoints & Decision
Making (cont.)
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Consequentialism
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Act: judged to be right or wrong based on
consequences
Commonly uses principle of utility—aims to
promote greatest general good
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Ethical Viewpoints & Decision
Making (cont.)
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Mixed Approaches to moral reasoning
Tries to capitalize on strengths of formalism &
consequentialism (the principle of utility)
Rule utilitarianism approach: variation of
consequentialism
Concerned w/ which “rule” would promote
greatest good, instead of which “act?”
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Disadvantage: variability between caregivers
Differences in values, educational levels
Risk of inconsistent ethical decision making
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Ethical Viewpoints & Decision
Making (cont.)
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Virtue Ethics
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Founded not in rules or consequences but in
personal attributes of character or virtue
Allows established practices of profession to give
guidance
Ask, “How should I carry out my life if I am to live
well?”
Calls for behavior based on what “good
practitioners” would do in similar circumstances
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Which ethical viewpoint emphasizes the moral
character of each individual?
A.
B.
C.
D.
Formalism
Virtue Ethics
Consequentialism
Role Duty
Copyright © 2013, 2009, 2003, 1999, 1995, 1990, 1982, 1977, 1973, 1969 by Mosby, an imprint of Elsevier Inc.
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Ethical Viewpoints & Decision
Making (cont.)
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Intuitionism
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Ethical viewpoint holds there are certain selfevident truths, usually based on moral maxims
“Treat others fairly”
When decision making tool is unhelpful in certain
situations, it will depend on intuitional abilities of
any specific caregiver
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Comprehensive Decision-Making
Models
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Comprehensive Decision-Making
Models
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Legal Issues Affecting Respiratory
Care
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Systems of Law
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Public lawtwo major divisions: criminal law &
administrative law
• Criminal law deals with acts against welfare & safety of
public
• Administrative law consists of regulations set by
government agencies
Copyright © 2013, 2009, 2003, 1999, 1995, 1990, 1982, 1977, 1973, 1969 by Mosby, an imprint of Elsevier Inc.
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Legal Issues Affecting Respiratory
Care (cont.)
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Systems of Law (cont.)
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Civil lawprotects citizens from others who might
seek to take unfair advantage
• Civil courts decide if plaintiff has been wronged & degree
of reparation required
Copyright © 2013, 2009, 2003, 1999, 1995, 1990, 1982, 1977, 1973, 1969 by Mosby, an imprint of Elsevier Inc.
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Which system of law consists of the regulations set
by government agencies?
A.
B.
C.
D.
civil law
criminal law
administrative law
ethical law
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Tort Law
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Civil wrong committed against individual or
property for which court provides remedy
Intentional tort involves willful act violating
another’s interest
Negligent tort is failure to perform one’s
duties competently
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Tort Law (cont.)
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“Causation”
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Revolves around whether acts of negligence were
caused, in fact, & legal cause of damages
“Proximate Causation” or “Legal Causation”
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Turns on foreseen ability
Determines fairness to impose damages on
defendant; tends to be retrospective analysis
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Tort Law (cont.)
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Damages: another factor in negligence
lawsuits; 3 types:
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Economic: awarded for economic loss
Non-economic damages: pain, suffering,
disability, disfigurement & loss of enjoyment of life
Punitive damages
• Awarded to punish wrongful conduct & deter future
unlawful conduct
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Tort Law (cont.)
Copyright © 2013, 2009, 2003, 1999, 1995, 1990, 1982, 1977, 1973, 1969 by Mosby, an imprint of Elsevier Inc.
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Tort Law (cont.)
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3 classifications of malpractice:
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Criminal malpractice (e.g., assault & battery)
Civil malpractice (e.g., negligence)
Ethical malpractice (e.g., violations of professional
ethics possibly resulting in censure)
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Tort Law (cont.)
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2 general defenses against intentional torts:
1. No intent to do harm
2. Patient gave consent to action, knowing risks
involved
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Avoiding Lawsuits
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Be aware of & conform to all legal aspects of
licensure & standards of care
Institutional risk management processes
should be an ongoing component of hospital
operation & professional development
Every therapist malpractice insurance
Active risk management practices &
appropriate guest relations policies – 2 most
effective tools in preventing malpractice
litigation
Copyright © 2013, 2009, 2003, 1999, 1995, 1990, 1982, 1977, 1973, 1969 by Mosby, an imprint of Elsevier Inc.
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What can a respiratory therapist do to minimize the
risk of being involved in a law suit?
A. have a malpractice insurance policy
B. respect the autonomy of a patient even if in
doing so others may be harmed
C. avoid the hospital’s risk management
department
D. Be aware of, and conform to all legal aspects of
licensure and the standards of care
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HIPAA
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Health Insurance Portability and
Accountability Act of 1996 (HIPAA)
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Congressional act (1996) to establish standards
for privacy of individually identifiable health
information
Basic goal of act was to strike balance
between:
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Protecting individuals’ health information, &
Not impeding exchange of information needed to
provide quality health care
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What is the basic goal of HIPPA?
A. balance between protecting individuals’ health
information and providing quality health care.
B. to help reduce cost of health care
C. to ensure that all the help care providers
accreditations are up to date.
D. to ensure that patient’s never see their own
medical chart information
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Medical Supervision
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RTs required by “scope of practice” to work
under competent medical supervision
RT’s employer, either physician or hospital, is
liable for RT’s actions
In some states, supervising physician may
still be liable even if therapist is employed by
hospital
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Legal theory of “failure to supervise”
Respondeat superior (“let the master answer”)
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Professional Licensure Issues
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Every RT should know, in detail:
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Respiratory Care Practice Act (Licensure Statute)
Therapist driven protocols:
• Therapists permitted to exercise independent judgment
• Decision-making will be more frequently called into
question in court
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Understand Causes of Discipline, including:
• Substance, abuse, domestic violence, sexual abuse,
gross incompetence
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Interaction of Ethics & The Law
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Corporate compliance officer (CCO)
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Oversees hospital’s business practices & makes
sure conformity to law
Available to discuss legal or ethical issues arising
in course of care
The Patient Protection And Affordable Care
Act (PPACA)
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Passed by congress in 2010
 Improves whistleblower protections for hospital
workers
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Interaction of Ethics & The Law
(cont.)
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National Labor Relations Act (NLRA)
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Provides protection to hospital workers, even if
they do not belong to a union
Protects worker when he or she engages in an act
that would benefit of all employees
• Example: RT asks supervisor to increase shift differential
for all RT’s who work that shift
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Interaction of Ethics & The Law
(cont.)
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False Claims Act
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Forbids making false claims against government
Provides severe sanctions against violators,
including monetary:
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Possible repayment up to 3 times amount if false
claim made against government health plan (i.e.,
Medicare, Medicaid)
Possible civil penalties
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