Fluent Essays

Using the Three-step Ethics Model (Blanchard-Peale) analyze the following case:The physician you work for has trained you on a skill and is now asking you to perform the skill independently within the office, yet you know that this particular skill is outside of the scope of practice for an MA in your state. What, if anything, should you do?150-word minimum Plagiarism is a serious penalty; please make sure to use your own words and provide citations and references for any sources you utilize in your responses. The citation (Fremgen, 2020) follows any sentence that reflects information you learned from the book. All initial responses to the DQs require at least one reference. Reminder: Use your own words when writing your post. The reference at the bottom of your post should appear as follows:ReferenceFremgen, B.F. (2020). Medical law and ethics (6th ed.). Upper Saddle River, NJ: Pearson. Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. Medical Law and Ethics Today’s Healthcare Environment Chapter 4 Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. Today’s Health Care Environment • Major changes since 1965 with Medicare and Medicaid – Increased life expectancy = more older adults – Technological discoveries • Preventative care and patient education stressed (but not funded) • Government legislation Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. Today’s Health Care Environment • Fixed-payment plans—medical care for a fixed monthly fee • Third-party payers Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. Managed Care Organization (MCO) • Gatekeeper • Health Maintenance Organization (HMO – offers a wide range of services to members for a predetermined fee by a limited group of providers • Preferred Provider Organization (PPO – patient must use a medical provider who is under contract with the insurer for an agreed-upon fee • Exclusive Provider Organization (EPO) – combines the concepts of HMO and PPO Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. Federal Assistance Programs • Medicare – Health care coverage for elderly or seriously disabled or with end stage renal disease or other debilitating ailments regardless of wealth or income – Rationing of health care Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. Medicaid • Medicaid: A joint Federal–State program • Federal program implemented by individual states • Financial assistance to insure poor and indigent • Rationing takes place • Not all providers accept Medicaid coverage Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. Diagnostic Related Groups (DRGs) • Classifies Medicare patient by illness • 467 illness categories • Hospitals receive preset sum for treatment of category regardless of “bed days” used • Discourages treatment of severely ill patients; patients often are discharged before ready Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. Ethical Considerations of Managed Care • Wealthy may have greater access to care and treatment than poor patients • Must provide minimum standard of care to everyone • Patients must be fully informed of consequences of obtaining health care elsewhere • Bait-and-switch • Profit may be more important than patient Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. Types of Medical Practice • Solo practice • Sole proprietorship • Partnership • Associate practice • Group practice • Professional corporation Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. Ethics of Fee Splitting • Fee splitting: one physician offers to pay another for referral (unethical and illegal) • Fee splitting vs. referrals • Franchise: business run by individual to whom franchisor grants exclusive right to market product or service in certain market area (ethical) • Franchisees: persons or companies that hold a franchise Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. Medical Specialty Boards • Over 23 specialty boards • Seek to improve quality of medical care • Encourage physicians to further education and training • Evaluate candidates who apply and pass exam • Board-certify those who pass Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. • American College of Surgeons – Fellow of American College of Surgeons (FACS) • American College of Physicians – Fellow of American College of Physicians (FACP) Medical Specialty Boards Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. Allied Health Professionals • Licensed personnel include: – Registered nurse – Nurse practitioner – Licensed practical nurse – Pharmacist Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. Allied Health Professionals • Certified personnel include: – Physician assistant – Medical assistant – Medical transcriptionist – Lab technician – Lab technologist Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. Conscience Clause • Enacted by several states • Employees may have a moral or religious objection to assisting with certain procedures (sterilization, abortion) • Employee cannot be discriminated against under the state’s statute Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. Medical Law and Ethics Introduction to Medical Law, Ethics, and Bioethics Chapter 1 Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. • Illegal is almost always unethical. For example, although marches during the Civil Rights movement were illegal, they were certainly not unethical. • Basic understanding of law as it applies to medical practice is essential • Helps to protect patients from poor medical care Why Study Law, Ethics, and Bioethics? Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. • Helps protect employee and employer from lawsuits • Assists medical professional in making decisions based on reason and logic rather than on just emotion • We live in a litigious society. Why Study Law, Ethics, and Bioethics? Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. • Addresses legal rights and obligations that affect patients and protect individual rights, including rights of health care employees • Provides yardstick to measure or judge actions • Punishes unlawful actions • Laws are rules or actions prescribed by a government authority that have a binding legal force Medical Law Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. • Regulate how medicine is practiced in each state • Provide legal definition for the practice of medicine in that state • List requirements and methods for licensure • Define what constitutes unprofessional conduct Medical Practice Acts Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. • Branch of philosophy related to morals, moral principles, and moral judgment • Morality is being virtuous; practicing right conduct • Uses reason and logic to analyze problems and find solutions • Concerned with actions and practices that improve welfare of people in a moral way Ethics Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. • Concerns issues related to practice of medicine • Explores and promotes principles guiding conduct of health care professionals • Involves the welfare and consideration of others in deciding how to act Medical Ethics Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. • Greatest good for the greatest number • Impact of actions on welfare of society as a whole, rather than merely the individual • Ends justify the means Utilitarianism Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. • Example: Medicare • Weakness: • The rights of some people, such as the poor or ill, may be ignored • Can result in biased allocations • Virtually impossible to quantify all variables • The vulnerable (young, sick, handicapped) may be ignored Utilitarianism Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. • Emphasis on individuals’ rights • Rights belong to all people • Weakness: may result in individualist, selfish behavior—even anarchy Rights-Based Ethics Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. • Focuses on performing duty • Explores conflicting opinions about “duty” • Differs depending on professional role (i.e., RN, physician assistant, medical assistant) • Weakness: difficult to know who determines one’s duty Duty-Based Ethics Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. Justice-Based Ethics • Based on a “veil of ignorance” to allow decision-makers to be impartial in their decisions • Weaknesses: • Unfair for the health to subsidize the unhealthy? • Due to media coverage and huge healthcare system it is impossible to have a “veil of ignorance” Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. • Emphasis on people, not on decisions or principles involved • Based on character traits such as integrity Virtue-Based Ethics Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. • Virtues are good habits • Examples: fairness, honesty, courage, and justice • Seeking the “good life” • Weakness: a person may become too trusting and complacent Virtue-Based Ethics Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. • Beneficence • Fidelity • Gentleness • Humility • Justice • Perseverance • Responsibility • Sanctity of or respect for life • Tolerance • Work Values That Drive Ethical Behavior Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. • Respect • Integrity • Honesty • Fairness • Empathy • Sympathy • Compassion • Loyalty Interpersonal Ethics Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. • Privacy, or confidentiality • Due process • Workplace free from sexual harassment • Comparable worth Workplace Issues Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. 1. Determine the facts 2. Define the precise ethical issue 3. Identify the major principles, rules, and values 4. Specify the alternatives 5. Compare values and alternatives 6. Assess the consequences 7. Make a decision Seven-Step Model for Examining Ethical Dilemmas Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. 1. Gather information 2. Clarify the ethical issues 3. Resolve the dilemma Dr. Bernard Lo’s Clinical Model Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. 1. Is it legal? 2. Is it balanced? For example, does one person or group benefit or suffer more than another as a result of your actions? 3. How does it make me feel (i.e., embarrassed, proud)? Three-Step Ethics Model Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. • Not just about how you feel • Not about sincerity of beliefs • Not about emotional response • Not only about religious beliefs What Ethics Is Not Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. • Moral dilemmas and issues resulting from advanced medicine and medical research relating to life • Examples: cloning, stem cell research, and gene therapy • Bioethicists: specialists in the field of bioethics Bioethics Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. • Examine ethical issues relating to patient care • Contain a variety of members from many health care disciplines • Can serve in advisory capacity to patients, families, and staff for case review of difficult ethical issues • Develop and review health policies and guidelines regarding ethical issues Ethics Committees Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. • Gather and evaluate information about services • Examine results • Compare information against a standard Quality Assurance Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. • Certain rules, or standards of professional behavior, that physicians practice in their relationships or conduct with other physicians • For example, telephone calls from one MD to another should be taken promptly Medical Etiquette Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. Medical Law and Ethics Importance of the Legal System for the Physician and the Healthcare Professional Chapter 3 Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. Medical Practice Acts • Establish examining boards • Provide baseline for practice of medicine • Determine prerequisites for licensure • Forbid practice of medicine without a license • Specify conditions for renewal, suspension, and revocation of licenses • Vary from state to state Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. Licensure of Physician • Examination – National Board Medical Examination (NBME) – Federal Licensing Examination (FLEX) – U.S. Medical Licensing Examination (USMLE) Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. Licensure of Physician • Endorsement: an approval or sanction • Reciprocity: cooperation of one state in granting license to practice medicine to a physician already licensed in another state Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. Licensure of Physician • Registration: • Occurs annually or biannually • Physicians must pay a fee • Physicians are required to complete seventy five hours of CME in a three year period Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. When Valid License Is Not Needed by a Physician • When employed by federal medical facilities (but must be a licensed physician to practice medicine in some state) • In an emergency • While establishing residency • When engaged solely in research Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. Revocation and Suspension • Unprofessional conduct: falsifying records, gross immorality • Commission of a crime: Medicare/Medicaid fraud, rape, murder, larceny, narcotics conviction • Personal incapacity: physical or mental incapacity Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. Licensure and Certification of Allied Health Professionals • Licensure: graduate from accredited school and pass national exam of competency • Certification: meet standards set by accreditation body and pass national exam of competency Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. Accreditation • Voluntary request of official review by accrediting agency • Examine policy and procedures of agency • Must demonstrate that the institution maintains high standards • Examples: JCAHO and CAAHEP Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. Standard of Care • Ordinary skill and care that must be used by medical practitioners • Must provide same knowledge, care, and skill that similarly trained physician and/or medical professional would provide under same circumstances • Perform as “reasonable and prudent” person would perform Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. Physicians Are… • Not obligated to treat everyone in case of emergency • Expected to use reasonable, ordinary skill and care (not extraordinary) • Expected to exhaust all resources available to them for patient care • Not to expose patients to undue risk Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. Prudent Person Rule (also called the “reasonable person standard”) • Must provide following information to patient: – Diagnosis – Risk and consequences of treatment – Expected benefits of treatment or procedure – Alternative treatments – Prognosis if no treatment – Cost and expected pain – Follow acceptable standard of care Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. Confidentiality • Keeping private all information about patient • No disclosure without written consent • Medical Patient Rights Act: a federal law that gives all patients right to have privacy respected and records held confidential Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. Statute of Limitations • Period of time patient has to file lawsuit • Usually one to three years • Discovery Rule: begins when problem discovered or when the patient should have known of the injury Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. Good Samaritan Laws • State laws help protect health care professionals and ordinary citizens from liability while giving care in emergency • No one is required to provide aid – Except in Vermont Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. Good Samaritan Laws • Only required to act within limits of acquired skill and training • Once you start you must continue until help arrives or you physically cannot continue Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. Respondeat Superior • “Let the master answer” • Employer liable for acts of employee within scope of employment Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. Employee’s Duty to Carry Out Orders • Duty to interpret and carry out orders • Duty to clarify ambiguous or erroneous orders • Duty to decline orders that appear dangerous for patient and to notify physician Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. Scope of Practice • Must understand and work within scope of practice for discipline • Must understand and practice within guidelines of profession • Must understand and follow chain of command so no employee makes decision he or she is unqualified to make Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. Employer’s Duty to Employees • Responsibility to provide safe environment for employees and staff • Most have liability insurance to cover accidents and unforeseen incidents • May bond employees who handle money • Some have liability insurance for auto if used for work-related business Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. Risk Management • A practice used to control or minimize incidence of problem behavior that might result in injury to patients and employees and liability for physician/employer – Identify risk behaviors and practices – Develop and follow plan of action to eliminate problem behavior – Address corrective actions in policy and procedure books and employee handbooks Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. Medical Law and Ethics Chapter 2 The Legal System Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. Two Fundamental Processes • Federal System: power divided between central (federal) government and smaller (state) governments • Checks and Balances: Designed so that no one single branch of government could control the entire government. Also means each branch of government is scrutinized by the other branches Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. The Legal System U.S. Constitution • Legislative Branch: lawmaking body (Senate and House of Representatives); originates legislation • Executive Branch: President, cabinet, and advisors; enforces the law • Judicial Branch: judges and federal courts; interprets the law Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. Figure 2.1 The Branches of the U. S. Government Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. Sources of Law • Constitutional Law: addresses relationship between individuals and their government • Statutory and Regulatory Law: passed by legislative bodies, either Congress or state legislature Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. Sources of Law • Common or Case Law: established from court decisions. Based on precedent. Old case decisions still influence today’s healthcare professionals Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. Classification of Laws • Public – Criminal – Administrative – Constitutional – International • Private or Civil – Tort – Contract – Property – Inheritance – Family – Corporate Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. Civil (Private) Law • Concerns relationships between individuals or between individuals, businesses, and government • Awards monetary damages • Includes tort law and contract law Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. Tort Law • Civil injury, or wrongful act • Committed against another person or property • Results in harm • Compensated by monetary damages • Can be intentional or unintentional Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. Intentional Torts • Assault: threat of bodily harm • Battery: actual bodily harm • False imprisonment: violation of one’s liberty • Defamation of character (slander/libel) • Fraud (i.e., embezzlement): deceitful practice • Invasion of privacy: break in confidentiality Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. Unintentional Tort • Negligence: an unintentional action that occurs when a person either performs or fails to perform an action that a “reasonable person” would or would not have committed in a similar situation • Involves performing carelessly or failing to perform a task • Not exercising ordinary standard of care Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. Contract Law • Addresses breach or neglect of legally binding agreement between two parties • Contract: voluntary agreement between two parties with intent of benefiting each other – Something of value (consideration) is part of agreement – Both parties must be competent Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. Contracts • Expressed Contract: agreement entered into orally or in writing; all components of contract must be clearly stated • Implied Contract: agreement shown through inference by signs, inaction, or silence Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. Contracts • Abandonment: withdrawing medical care from a patient without providing sufficient notice • Breach of Contract: either party fails to comply with terms of the agreement • Abandonment: withdrawing medical care from a patient without providing sufficient notice (in writing) Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. Class Action Lawsuit • Filed by one or more people on behalf of a larger group of people • The members of the group are all affected by the same situation Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. Public/Criminal Law • Protects public from harmful acts of others • Defines socially intolerable conduct that is punishable by law • Government prosecutes person or institute that violates law • Penalties are fine, imprisonment, or both • May be felony or misdemeanor Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. Administrative Law • Regulations set by government agencies: • Licensing and supervision of prescribing controlled substances • Health department regulations • Regulations against homicide, infanticide, euthanasia, assault and battery • Regulations against fraud Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. The Court System • Two court systems in the United States – State – Federal • Each has specific responsibilities – Exclusive – Concurrent (both courts have power to hear the case) • Depends on type of offense committed Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. Figure 2.2 Separation of Powers in the Federal Legal System Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. Types of Courts • Federal – District (municipal) – Court of appeals (circuit court) – U.S. Supreme Court • State – District (municipal trial) – State court of appeals – State supreme court Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. Figure 2.3 Federal Court Structure Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. Figure 2.4 Components of Civil Law (Courtesy of Amy Wilson, BS, RT(R), RDMS, RVT) Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. Figure 2.5 Felony Case Process (Adapted from “A Citizen’s Guide to Washington Courts,” Washington State Office of Administrator for the Courts, 1997.) Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. Figure 2.6 Misdemeanor Case Process (Adapted from “A Citizen’s Guide to Washington Courts,” Washington State Office of Administrator for the Courts, 1997.) Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. Trial Process • Grand Jury consists of 12–23 private citizens • Hears evidence about case • Determines if case merits court hearing • Serves as filter • Votes on whether to move indictment to trial court Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. The Procedure • Litigation: may result when two parties are unable to solve a dispute by themselves • Plaintiff: the person or institution who brings an action into litigation • Defendant: the person or institution who is being sued Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. The Procedure • Settling out of court: occurs when attorneys for both sides work out a settlement • Waive: both parties (defendant and plaintiff) give up their right to a jury trial • Trial: begins with opening statements made by attorneys for each side of the case Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. The Procedure • Closing argument: attorneys for the plaintiff and the defendant make closing speeches or summaries of their case • Appeal: plaintiff or defendant may ask (appeal) a higher court to review the decision Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. Figure 2.7 The Procedure for a Civil Trial (Adapted from “A Citizen’s Guide to Washington Courts,” Washington State Office of Administrator for the Courts, 1997.) Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. Summary Judgment • Request made by an attorney • Takes place in a civil trial • Asks the court judge to declare no need for a trial • Means neither plaintiff nor defendant entitled to win based on existing law Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. Subpoena • Discovery: process by which facts are discovered • Deposition: oral testimony before an officer of the court • Subpoena duces tecum: court order to appear in court and bring records Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. Standards of Proof • Several different levels of proof are required • Civil case: court looks at “preponderance of evidence” • Civil case places weight on evidence that is more credible and convincing • Criminal case: needs proof “beyond a reasonable doubt” Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. Expert Witness • Professional who has special knowledge or experience • Assists jury or judge in determining accuracy of facts in case • Often testifies to what standard of care is • Generally paid a fee • Clarifies points of knowledge not readily understood by the jury or judge Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen Copyright ©2012 by Pearson Education, Inc. Upper Saddle River, New Jersey 07458 All rights reserved. Testifying in Court • Tell the truth • Be professional • Remain calm • Do not answer a question that you do not understand • Present only facts • Do not memorize testimony