Download Medical Law/Application Process

Medical
Law/Application
Process
Classification of Law (2)

Criminal (“Penal”) Law




Relates to crime
Rules that define prohibited conduct because [that
conduct] is believed to threaten, harm, or otherwise
damage the safety & welfare of the public.
Punishment: Imprisonment & Fines
Civil Law


Legal rights and responsibilities (duties) of private
citizens
Punishment: Money awards
Legal Torts
“Legal or civil wrong committed by one
person against the person or property of
another person”

Two (2) Types


Intentional
Negligence
Intentional Tort of Misconduct


Plaintiff must establish that the defendant
intended to commit the specific wrong that
has been alledged.
Must be conscious performance of act to
accomplish specific result, or where a
reasonable person would have known the
results of a particular act.



Deliberate action
Conscious action
Plaintiff must show intent
Misconduct (types)

Assault

Acting intentionally & voluntarily causing the
reasonable apprehension of an immediate
harmful or offensive contact



Intent
Apprehension
Battery

Intentionally & voluntarily bringing about an
unconsented harmful or offensive contact with
a person

Involves actual contact
Misconduct (types)

False Imprisonment

Conscious restraint of freedom of another
without proper authorization, priviledge, or
consent

In healthcare must be limited to, and in
proportion with the procedure being
performed.

Based on “reasonableness”
Misconduct (types)

Defamation of Character




Slander – spoken
Libel – written
Must be written or spoken, and made to a
person other than the plaintiff
Invasion of Privacy



Patient’s medical record (includes x-ray images)
Freedom of Information Act (pt can access
records)
Covered by HIPAA Laws (PHI)
Standard of Care

“Skill and learning commonly possessed
by members of a particular profession.”

In healthcare known as “Standard of
Reasonable Care”


Depends on specifics of situation
Open to interpretation by judge & jury
Tort of Negligence


“Doing something you should not have done”
or
“Not doing something that you should have
done.”

Negligent behavior or actions that cause
harm to another person known as
“malpractice.”

Hippocratic Oath: “Do no harm”
Medical Negligence =
Malpractice
Def: “A breach from the standard practice that
is the proximate cause of a patient’s injury.”

Elements of proof of negligence in a medical
malpractice case include a deviation, or
departure from acceptable standard of
practice

A negligent act committed by a professional
person constitutes malpractice only if it
involves negligence in the carrying out of his
professional duties
Malpractice classifications

Criminal Malpractice




Civil Malpractice


Assault
Battery
Mercy Killing (“Angel of Death”)
Practice falls below “Standard of Care”
Ethical Malpractice

Violations of professional ethics (e.g. ASRT Code
of Ethics)
Malpractice: Plaintiff must
prove
1.
2.
3.
4.
Duty of responsibility to
patient owed
Duty of responsibility is
breached (broken)
Damages (Injury or Death)
Proximal (Direct) Cause
Malpractice: Plaintiff must
prove
1.
2.
3.
4.
Duty of responsibility to
patient owed
Duty of responsibility is
breached (broken)
Damages (Injury or Death)
Proximal (Direct) Cause
Medico-Legal Doctrines

Respondeat superior





“Let the master respond”
Employer is liable for negligent acts of
employees which occur when the employee is
acting as an instrument of the employer.
Employee-Employer relationship must exist
Does not relieve practitioner of negligent
behavior
“Indemnification”

Employer can recover awarded damages from
its employee
Medico-Legal Doctrines

Res ipsa loquitur

“The thing speaks for itself”

Often invoked to cause the defendant to prove his
actions were not negligent (accused my prove that
he is innocent)

The outcome is so obvious that the damage(s) can
only have been caused by the defendant.

e.g. sponges & instruments left inside patients, surgical
outcomes (esp. plastic surgery) that didn’t turn out
right, wrong medications administered to the patient.
Medico-Legal Doctrines

Corporate Liability



Duty of reasonable care in selection and
retention of employees and medical staff
Duty of reasonable care in maintenance and
use of equipment
Availability of services
Informed Consent
Affirmation by patient to consent to have procedure
performed

Patient must have:




Appropriate mental capacity
Accepted elements of consent
Been for lawful purpose
Who can sign?



Must be over age of majority
Spouse
Emancipated Minor
Informed Consent must
contain:

Authorization Clause


Disclosure Clause





Permits healthcare giver to perform procedure
Explanation of procedure
Risks – to include possibility of death
Benefits of having procedure performed
Alternatives
Anesthesia Clause (if anesthesia to be given)
Informed Consent must
contain:

No guarantee clause

Tissue Disposal Clause

Patient Understanding Clause



Had all questions answered
Everything explained to patient
Signature Clause


Patient signature or mark
Witness
The lack of a signed Informed
Consent form constitutes
medical malpractice!
(Deviation from “Standard of
Practice”)
Child Abuse

“Abuse” vs “Neglect”



Abuse: Positive action, very distinct,
aggravated
Neglect: Failing to do something you should
Punishment


Abuse: Child removed from family
Neglect: DFS/DCWS work with family,
counselling
Not reporting suspected child
abuse

Civil Liability

California Supreme Court (1976) – Landeros v.
Flood




Sued ER physician (Flood) & hospital for
malpractice because they had a duty to
recognize battered child syndrome.
Required by law to report suspected child
abuse
Immunity Provision
Immunity does not apply for malicious reporting
Laws you should know about:

Radiologic Technology Act (1974)


Health Insurance Portability & Accountability
Act (HIPAA)



Calif Code of Regulations (CCR) Title XVII
Passed 1996; became fully effective 2003
Privacy of patient information (PHI)
10 CFR 20 – NRC (1994)

“Standards for Protection Against Radiation”
Laws you should know about:
 Mammographic
Quality Standards Act (1992,
renewed 2003) – “MQSA”
 Patient-Consumer
(1981)





Radiation Health & Safety Act
National educational & credentialing standards for RT
training (Sec. HHS)
Compliance was voluntary
Did not specify “penalties” for non-compliance
Law was unenforceable
Didn’t do what it was intended to do
Laws you should know about:
 Consistency,
Accuracy, Responsibility & Excellence
in Medical Imaging (CARE) Bill





Originally discussed as an enforcement clause in the
1981 Act.
Compliance mandatory - tied to MediCare/MediCAID
reimbursement to force compliance
1997 – ASRT votes to advocate federally mandated
standard for education & credentialing
1999 - First introduced as a Congressional bill
2011 - Still pending Congressional passage (H.R. 1207)
Laws you should know about:
 Calif
SB 1237

Procedures to protect patients from radiation
overexposure (ref CT Scans) – signed into law October
2010.

Requires:
◦
◦
◦
◦
CT Scan Dose reporting
CT Facility accreditation
Medical event reporting to DPH
Effective July1,2012