AMA 102 Legal
Concepts
Sources of Law
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U.S. Constitution
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Legislative branch; Congress
Judicial branch; U.S. Supreme Court
Executive branch; President
Statutory Law
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Created by Congressional and state
legislative bodies
Published in statutes known as codes
Broad scope subject only to constitutional
limitations
Direct social effect through the political
process
Administrative Law
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A type or extension of statutory/legislative
law
Given power to enact regulations, have
force of law
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Examples: Internal Revenue Service (IRS),
Federal Trade Commission (FTC), state
medical boards, Medicare, Drug Enforcement
Agency (DEA)
Common Law
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Created by judicial branch through
decisions in cases decided by courts
Diffuse; rules found in fact, patterns, and
decisions of prior cases
Narrow in scope; limited to actual cases
Indirect social effect; judges somewhat
insulated from political pressure
Civil Law
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Court actions between private parties,
corporations, government bodies, or other
organizations
Compensation sought usually monetary
Recovery of private rights
Plaintiff: Party bringing action
Defendant: Person accused
Criminal Law
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Court actions brought against individual(s)
or groups of people accused of committing
a crime
Punishment, usually imprisonment and/or
fine
Recovery of rights of society
Crime Defined
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Felony
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A serious crime such as murder, assault, rape
The punishment is usually severe
Misdemeanor
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Less serious than a felony
Disorderly conduct, thefts of small amounts
Controlled Substances Act
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DEA governed, administrative law
Regulates addicting medications
Greatest potential for abuse, dependence
Five schedules from most addicting to least
Rules to administer, dispense, or prescribe
Registration every 3 years
Record keeping
Inventory
Security
Subpoenas
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An order to appear in court under penalty for failure to
do so
Subpoena duces tecum
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Court order requiring a witness to appear and bring certain
records or tangible items to a trial or deposition
Expert Witness
Qualified to testify to professional standard of care; reputable,
honest, impartial
Essential when subject is beyond understanding of laypersons
Testifies what they see, hear, know to be a fact
Entitled to a fee
Medical Practice Act
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State statute that defines practice of
medicine
Describes methods of licensure
Sets guidelines for suspension or
revocation of license
Professional Liability
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Criminal liability or malfeasance
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Civil liability or misfeasance
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Commission of unlawful act
Improper performance resulting in injury to
another
Nonfeasance
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Failure to perform an act when there is a duty
to do so
Standard of Care
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Requires physicians to use the ordinary,
reasonable skill, experience, and
knowledge commonly used by other
reputable physicians when caring for
clients
HIPAA
Passed by Congress in 1996
1. Requires standardized, electronic client
data
2. Created unique health identifiers for
clients and practitioners
3. Created security standards to protect
confidentiality of client data
Confidentiality
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Any communication between client and
physician must be kept private
Share with other professionals on a “need
to know for client’s care” basis
Privilege belongs to the client
Special consideration for clients with
HIV/AIDS
Contract
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Agreement between two or more competent persons upon consideration or
payment to do or not to do a task that is legal
Expressed
Implied
Abandonment
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Physicians are liable if they abandon client
Prevention: Formally withdraw from a case
Breach of Contract
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One party fails to satisfy the contract
Is cause for litigation
Torts
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Private or civil wrongs
Wrongful acts committed against persons
that cause harm to the persons
Damage to client, proximately caused by
conduct of physician that falls below the
standard of care
Professional Negligence
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Failure to perform professional duties
according to accepted standard of care
Performing act reasonable, prudent
physician would not perform OR failure to
perform act that reasonable, prudent
physician would perform
Same as malpractice
Four Ds of Negligence
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Duty
Derelict
Direct Cause
Damages
Res Ipsa Loquitur
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A Latin phrase meaning, “The thing speaks for itself”
A doctrine of negligence law
Respondeat Superior
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Legal doctrine
Literally means, “Let the master answer”
Employer is responsible for the actions of
his/her employees
Risk Management
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Prevention within the health care setting
Prevention with clients
Communicable/Notifiable Diseases
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Concern for public welfare
Laws vary among states
Health departments publish list
Health professionals must report
Notifiable/Reportable Injuries
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Concerns public welfare
Gun or knife wounds are examples
Child, Elder Abuse, Domestic Violence
Child Abuse
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All states, District of Columbia mandate
reporting of child abuse
Reporting: Who, what, when
Civil liability of reporter
Intimate Partner Violence (IPV)
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Violence between
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Spouse/former spouse
Current or former boyfriend/girlfriend
Current or former same sex or heterosexual
intimate partners
Elder Abuse
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Intentional or unintentional physical or
psychological harm to someone 60 years
or older
Commonly occurs in the home, nursing
home, or other institutions
Remember…
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Vulnerability of survivor to future harm,
assault
Respect survivor’s right not to report if
permissible by law
Survivor and abuser need professional
care
Evidence
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Carefully document in medical records
Documentation must be clear, concise,
complete, and in order
Chain of evidence cannot be broken
Substance Abuse
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Commonplace in society today
Health professionals are especially
vulnerable to substance abuse
Follow HIPAA and confidentiality
guidelines
Keep prescription orders secure
Have frank, open discussion with clients
Good Samaritan Laws
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Purpose is to encourage health
professionals to render first aid to victims
without liability for negligence
Exist in all 50 states
May be poorly defined
Do not protect persons who perform
outside their scope of practice
Consent
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The affirmation by a client to allow
touching, examination, and/or treatment
by medically authorized personnel
Types of Consent
 Informed
 Uninformed
Doctrine of Informed Consent
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Law requiring client to understand nature
of illness and be told:
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What the procedure is and how it is
performed
Possible risks involved and expected results
Any alternative procedures/treatments and
risks
Results if no treatment is given
Problems in Consent
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Minors
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Mature minors
Emancipated minors
Foster children
Mentally incompetent clients
Language barrier/interpreter
Exceptions to Informed Consent
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Unique to each state
Need not disclose
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risks commonly known
if knowledge might be detrimental to clients
if client asks to remain ignorant
Implementing Consent
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Consent forms must be:
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Understandable
Protect client’s rights
Be broad but specific
Signed with expiration date
Witness verifies that signature is that of
the client
Purpose of Medical Records
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Base for managing client’s care
Provide inter/intraoffice communication
Document health from birth to death
Allows patterns to surface
Serve as legal basis for litigation
Provide clinical data for education and
research
POMR & SOAP/SOAPER
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Problem
Oriented
Medical
Record
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Subjective
Objective
Assessment
Plan
Education
Response
HIPAA--PHI
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Protected health information (PHI) in
electronic medical records
Notice of Privacy Practices (NPP)
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Restrict usage of PHI
Request confidential communication
Inspect and obtain copy of PHI
Request amendment of PHI
Receive an accounting of PHI disclosure
Correcting Medical Records
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Handwritten errors
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Draw line through error w/red pen
Write “corr,” sign initials, date, write in
correction
Never use whiteout, it is illegal
Never alter a medical record, just add
corrections or additions
Correcting Medical Records
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Electronic errors
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Use word processing tracking device to draw
line through error
Place correction after information lined out
Word “correction” or “corr” is indicated
Place initials and date correction is made
Electronic Medical Records
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Computer safety and security required
Robust firewalls, antivirus installed
Password protected, changed regularly
Computer limits access to invalid attempts
Computer screens out of view
Screensaver prevents unwanted viewer’s
access
Email
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Automated replies to acknowledge receipt
Explain email privacy risks to clients
Avoid email that requires urgent reply
Email goes in clients records
Do not forward without permission
Establish regular time to read and respond
to email
Fax
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Use only when more secure measures is
not appropriate
Keep machines in restricted-access, secure
areas
Verify fax recipient, number, machine
location
Include statement for receiving fax in
error
Medical Records
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Ownership of records
Right to privacy of record release
Storage of records
Retention of records