Legal and Ethical Issues in Medical Practice, Including HIPAA

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Legal and Ethical Issues in Medical Practice,
Including HIPAA
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Learning Outcomes
3.1 Define ethics, bioethics, and medical
law. 3.2 Discuss the measures a medical practice
must take to avoid malpractice claims. 3.3 Discus
s medical documentation and how it applies to
medical law.
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Learning Outcomes (cont.)
3.4 Discuss the various types of health-care
legislation. 3.5 Describe OSHA requirements for
a medical office. 3.6 Describe procedures for
handling an incident of exposure to hazardous
materials.
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Learning Outcomes (cont.)
3.7 Compare and contrast quality control and
quality assurance procedures. 3.8 Discuss the
impact that HIPAA regulations have in the medical
office. 3.9 Explain how to protect patient
confidentiality. 3.10 Describe the different
practice management models.
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Introduction

• Reasons to study medical law and ethics
• Function at the highest professional level
• Avoid legal problems

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Medical Law and Ethics

• Knowledge of medical law and ethics provides
  insight into
• The rights, responsibilities, and concerns of
  health-care consumers
• The legal and ethical issues facing society,
  patients, and health-care professionals as the
  world changes
• The impact of rising costs on the laws and ethics
  of health-care delivery

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Medical Law and Ethics (cont.)
Law
Ethics
Ethics is a standard of behavior and a concept of
right or wrong. Moral values serve as the basis
for ethical conduct. Family, culture, and
society help form an individuals moral values.
A law is a rule of conductor action prescribed
or formally recognized as binding or enforced by
a controlling authority.
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Medical Law and Ethics (cont.)

• Criminal law
• Crime against the state
• Criminal acts are
• Felonies or
• Misdemeanors
• Examples include
• Murder
• Arson
• Sexual assault
• Burglary

• Civil law
• Crimes against the person
• Includes a general category of laws known as
  torts
• Torts are either
• Intentional (willful) or
• Unintentional (accidental)

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Intentional Torts
Open threat of bodily harm
An action that causes bodily harm to another,
including touching without permission
Assault
Battery
Invasion of privacy
Depriving or attempting to deprive a person of
his or her rights
Fraud
Interference with a persons right to be left
alone
False imprisonment
Defamation of character
Damaging a persons reputation by making false
and malicious public statements
Intentional, unlawful restraint or confinement of
a person
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Unintentional Torts

• Acts that are committed with no intent to cause
  harm but done with a disregard for the
  consequences
• The term negligence is used to describe such
  actions when health-care practitioners fail to
  exercise ordinary care, resulting in patient
  injury
• Malpractice is the negligent delivery of
  professional services

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Contracts
A contract is a voluntary agreement between two
parties in which specific promises are made for a
consideration.
Elements of a Contract
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Types of Contracts

• Expressed contracts
• Clearly stated in written or spoken words
• An example is a payment contract
• Implied contracts
• Actions or conduct of the parties, rather than
  words, create the contract
• An example is a patient rolling up his or her
  sleeve to receive an injection

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Apply Your Knowledge
What is the difference between law and ethics?
ANSWER A law is a rule of conduct or action and
is enacted by governments to maintain order and
public safety. Ethics is a standard of behavior
based on moral values that are influenced by
family, culture, and society.
Good Answer!
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Physician/Patient Contract

• Reasonable limitations
• Both parties have rights and responsibilities
  related to the contract

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Physician Rights

• Set up a practice within the boundaries of his or
  her license to practice medicine
• Select where to set up an office and establish
  office hours
• Specialize
• Decide which services to provide and how those
  services will be provided

• Physicians do not have to
• Treat every patient
• Return patient to original state of health
• Make a correct diagnosis in every case
• Guarantee success of treatment or operation

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Physician Responsibilities

• Physician responsibilities
• Use due care, skill, judgment, and diligence
• Keep knowledge up-to-date
• Perform to the best of his or her ability
• Furnish complete information and instructions to
  the patient

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Patient Rights/Responsibilities

• Patient responsibilities
• Follow physicians instructions and cooperate
  with care
• Provide relevant information to the physician
• Follow the physicians orders for treatment
• Pay the fees charged for services provided

• Patients
• May choose their physician
• May terminate a physicians services
• The Patient Care Partnership
• A list of standards that patients can expect in
  health care
• Formerly the Patients Bill of Rights

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Patient-Physician Contract (cont.)

• Consent
• Implied actions imply permission
• Informed
• Patient receives all information necessary to
  make a decision regarding treatment
• Doctrine of informed consent legal basis for
  informed consent

• Liability
• Legal responsibility for actions
• Understand scope of practice
• Understand standard of care and duty of care
• Medical assistants are all held to the
  reasonable person standard

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Special Circumstances Closing of a Practice

• Comply with HIPAA
• Notify patients in writing
• Give option of choosing another physician or make
  referral
• Secure or dispose of records appropriately
• Remain up-to-date on HIPAA laws

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Apply Your Knowledge
Patients have rights and responsibilities
relating to health care. The rights are
determined by the Patient Care Partnership. What
are the patients responsibilities?

• ANSWER Patient responsibilities are
• Follow physicians instructions and cooperate
  with plan of care
• Provide relevant information to the physician
• Follow the physicians orders for treatment
• Pay the fees charged for services provided

Good Job!
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Preventing Lawsuits

• Lawsuits
• Add to cost of health care
• Take a psychological toll on all involved
• Prevention
• Use of reasonable care to prevent professional
  liability

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Malpractice

• Malpractice claims are lawsuits by a patient
  against a physician for errors in diagnosis or
  treatment
• Examples post-operative complications, Res ipsa
  loquitur (the thing speaks for itself)
• Negligence cases are those in which a person
  believes a medical professionals actions, or
  lack thereof, caused harm to the patient
• Examples abandonment, delayed treatment

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Malpractice (cont.)

• Legal terms used to classify negligence
• Malfeasance - unlawful act or misconduct
• Misfeasance - lawful act done incorrectly
• Nonfeasance - failure to perform an act that is
  ones required duty or that is required by law

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The 4 Ds of Negligence
D
Patients must be able to prove all 4 Ds in order
to move forward with a malpractice suit.
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Malpractice (cont.)

• Settling malpractice suits
• Arbitration
• People with special knowledge in the field listen
  to the case and decide the dispute
• Court
• Written court orders (subpoena) are delivered to
  involved parties.
• Subpoena duces tecum is a court order to produce
  documents such as patient records

• Civil law
• Concerned with an individuals private rights
• Torts
• Negligence
• Breach of contract
• Failure to adhere to a contracts terms

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Malpractice (cont.)

• Law of Agency
• Employees are considered to be agents of the
  physician while performing professional tasks
• Physicians are responsible or liable for the
  negligence of employees
• Respondeat superior is a Latin term meaning Let
  the master answer

Employees are also legally responsible for their
own actions, and they can be sued directly.
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Courtroom Conduct

• Attend court proceedings as required and do not
  be late for scheduled hearings
• Bring required documents to court and present
  them when requested to
• Refresh your memory before testifying
• Speak slowly, clearly, and professionally
• Answer all questions in a straightforward manner
• Answer only the question asked
• Appear well groomed, and dress in clean,
  conservative clothing

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Malpractice (cont.)

• Reasons patients sue
• Unrealistic expectations
• Poor rapport and poor communication
• Greed and our litigious society
• Poor quality of care

• Professional Liability Coverage protects the
  physician and staff against financial losses from
  lawsuits filed against them

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Malpractice (cont.)

• Statute of limitations
• Laws that set the deadline or maximum period of
  time within which a lawsuit or claim may be filed
• Deadlines vary
• Type of case
• State vs. federal court

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The 4 Cs of Malpractice Prevention
C
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Terminating Care of a Patient

• Reasons for terminating care of a patient
• Refusal to follow physician instructions
• Patient family member complaints
• Personality conflicts
• Failure to pay for services rendered
• Repeated failure to keep appointments

• When withdrawing from care, a physician must
• Provide written notification
• Reasons for withdrawing
• Recommend that the patient find another physician
• Send by certified mail with return receipt
  requested
• Document in the patient record reasons for
  terminating care and actions taken to inform the
  patient

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Standard of Care

• Apply legal concepts to practice by
• Maintaining confidentiality
• Practicing within the scope of training and
  capabilities
• Preparing and maintaining medical records
• Documenting accurately
• Using proper guidelines when releasing information

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Standard of Care (cont.)

• Apply legal concepts to practice by
• Following legal guidelines and maintaining
  awareness of health-care legislation and
  regulations
• Maintaining and disposing of regulated substances
  appropriately
• Following risk-management and safety procedures
• Recognizing professional credentialing criteria

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Administrative Duties and the Law

• Duties related to legal requirements

• Insurance billing
• Patient consent forms
• Documentation in the medical record
• Making appointments
• Appointment books are a legal document

• State reporting requirements
• Births
• Abuse
• Certain diseases
• Injuries from violent acts
• Deaths
• Phone calls
• Maintain privacy

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Documentation

• Clear and complete
• Referrals
• Missed appointments
• Dismissals
• Patient contact
• Medical record correction

• Medical records
• Property of facility or physician
• Doctrine of Professional Discretion
• Retention and storage
• Based on state law

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Controlled Substances and the Law
Be familiar with correct dosages, potential
complications, and refill rules.
Medical assistants must follow the correct
procedure for keeping and disposing of controlled
substances.
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Legal Documents and the Patient
States the types of treatment the patient does
and does not want in an event of terminal
illness, unconsciousness, or comatose state.
Patients with living wills are asked to name
someone that will make decisions on their behalf
(durable power of attorney) if they are unable to
do so.
Living Will (Advance Directive)
Uniform Donor Card
A legal document that states a persons wish to
donate one or more organs or whole body.
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Confidentiality Issues

• Legal obligation to maintain confidentiality of
  patient information
• Discuss with patient privately
• Share patient information only when appropriate
• Do not discuss the case with anyone outside the
  medical office

Confidential
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Apply Your Knowledge
What are the 4 Cs of malpractice prevention?
ANSWER The 4 Cs of malpractice prevention are
caring, communication, competence, and charting.
Bravo!
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Federal Legislation Affecting Health Care

• Health Care Quality Improvement Act (1986)
• Purpose Improve the quality of medical care
  nationwide
• National Practitioner Data Bank

• Federal False Claims Act
• Qui tam
• To bring action for the king and ones self
• Control three types of illegal conduct
• False billing claims
• Kickbacks
• Self-referrals

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OSHA Regulations

• The Occupational Safety and Health Administration
  (OSHA) is a division of the U.S. Department of
  Labor
• Regulations describe precautions that must be
  taken to protect workers from exposure to health
  hazards on the job, including exposure to
  infectious diseases such as
• Human immunodeficiency virus (HIV)
• AIDS
• Hepatitis B virus (HBV)

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Exposure Plan

• Personal protective equipment or gear
• Immunizations against hepatitis B virus (HBV)
• Information on what to do in case of exposure
• Information on decontamination of waste products
• Information on how to dispose of sharp equipment
  (needles, etc.)
• Information on post-exposure evaluation and
  follow-up

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Exposure Plan (cont.)

• Information on how to keep an inventory of
  hazardous materials
• Labeling for bio-hazardous wastes
• Training, annual updates regarding hazardous
  materials and infectious substances
• Recordkeeping and documentation to protect the
  legal rights and safety of employees

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Apply Your Knowledge
What do OSHA regulations describe?
ANSWER OSHA regulations describe precautions
that must be taken to protect workers from
exposure to health hazards on the job.
Correct!
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HIPAA

• Health Insurance Portability and Accountability
  Act (1996)
• Improve efficiency and effectiveness of
  health-care delivery
• Protect and enhance the rights of patients
• Access to health-care information
• Control inappropriate use or disclosure
• Improve the quality of health care by restoring
  trust in the health-care system

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Title I Health Care Portability

• Increases workers ability to get health-care
  coverage when starting a new job
• Reduces workers probability of losing existing
  health-care coverage
• Helps workers maintain continuous health-care
  coverage when changing jobs
• Helps workers purchase health insurance on their
  own if they lose coverage under an employers
  group plan and have no other health-care coverage
  available

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Title II Prevention of Health Care Fraud and
Abuse, Administrative Simplification and Medical
Liability Reform

• HIPAA privacy rules
• Give patients more control over their health
  information
• Set boundaries on the use and release of
  health-care records
• Establish appropriate safeguards to protect the
  privacy of health information
• Hold violators accountable if they violate
  patients privacy rights
• Strike a balance when public responsibility
  supports disclosure of some forms of data

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HIPAA (cont.)

• Privacy Rule protected health information (PHI)

• Use movement within an organization
• Disclosure transmitted between or among
  organizations
• Managing and storing
• Sharing
• Notice of Privacy Practices (NPP)

• Protection security measures
• HIPAA Security Rule
• Computer networks
• The Internet
• Disks, other storage media, and extranets
• Chart
• Reception area and clinical stations
• Fax, copier, and printer

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HIPAA (cont.)

• Violations and penalties
• Civil
• Criminal for the knowing, wrongful misuse of
  health information
• Administrative simplification
• Standardizing patient information
• Standardized codes and formats electronic
  transaction records

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Apply Your Knowledge
While you are documenting on the computer, you
are called to a patient room for an emergency.
What should you do before leaving the computer?
ANSWER You should close the patient record and
log off the computer to protect the
confidentiality of patient information.
Good Answer!
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Confidentiality Issues and MandatoryDisclosure

• Principles for preventing improper release of
  information
• When in doubt, do not release information
• It is the patients right to keep patient
  information confidential or disclose it
• All patients should be treated with the same
  degree of confidentiality
• Be aware of all applicable laws and of the
  regulations

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Confidentiality Issues and MandatoryDisclosure
(cont.)

• Principles for preventing improper release of
  information
• When necessary to break confidentiality and when
  there is a conflict between ethics and
  confidentiality
• Discuss it with the patient
• If the law does not dictate what to do in the
  situation, the attending physician should make
  the judgment based on the urgency of the
  situation and any danger that might be posed to
  the patient or others
• Get written approval from the patient before
  releasing information

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Apply Your Knowledge
A police officer enters the physicians office
where you work and requests information about a
patient. May you release this information? What
should you do?
ANSWER No, you should not be the person to
release this information. You should refer the
officer to the patients physician, who will make
the judgment based on the urgency of the
situation and any danger that might be posed to
the patient or others.
YES!
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Code of Ethics

• Principles of right and wrong
• Laws are often based on ethical considerations
• Medical professionals are expected to act
  ethically

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Code of Ethics (cont.)

• Bioethics
• Pertains to issues that arise due to medical
  advances
• Principles of medical ethics have developed over
  time dating back to Hippocrates
• AMA defines ethical behavior for physicians
• Patient Care Partnership Understanding
  Expectations, Rights, and Responsibilities
• Replaced the Patients Bill of Rights

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Legal Contract Elements

• An agreement between two or more competent people
  to do something legal
• Names and addresses of the people involved
• Consideration (whatever is given in exchange,
  such as money, work, or property)
• Starting and ending dates, as well as date(s) the
  contract was signed
• Signature of the employer and employee

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Apply Your Knowledge
Mr. Jones would like to try a new treatment for
his Parkinsonism, but his physician refuses to
discuss a new treatment with Mr. Jones because he
morally disagrees with this type of treatment.
This is an example of what type of issue, and
what should the physician do?
ANSWER This is an example of a bioethical issue.
The physician should refer the patient to
another physician who specializes in this
treatment.
Good Answer!
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Labor and Employment Laws

• Title VII of the Civil Rights Act of 1964
• Law prevents employers from discriminating in
  hiring or firing on the basis of race, color,
  religion, sex, or national origin
• Age Discrimination in Employment Act (ADEA) of
  1967
• Prohibits discrimination in hiring or firing
  based on age for persons aged 40 or older

• Sexual harassment
• The victim has the responsibility to let the
  harasser know that the conduct is offensive
• The victim should also report any instance of
  sexual harassment to a supervisor or the
  personnel department

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Labor and Employment Laws (cont.)

• 1976 Pregnancy Discrimination Act
• Makes it illegal to fire an employee based on
  pregnancy, childbirth, or related medical
  conditions
• Civil Rights Act of 1991
• Provides monetary damages in cases of intentional
  employment discrimination

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Labor and Employment Laws (cont.)

• Titles I and V of the Americans with Disabilities
  Act of 1990
• Ban discrimination against disabled persons in
  the workplace
• Mandate equal access for the disabled to certain
  public facilities
• Require all commercial firms to make existing
  facilities and grounds more accessible to the
  disabled

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Labor and Employment Laws (cont.)

• 1938 Fair Labor Standards Act
• Prohibits child labor and firing employees for
  exercising their rights under the acts wage and
  hour standards
• Provides for overtime pay and a minimum wage
• Equal Pay Act of 1963
• Requires equal pay for men and women doing equal
  work
• Family Leave Act of 1991
• Allows employees to take unpaid leave time for
  maternity, for adoption, or for caring for ill
  family members

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Apply Your Knowledge
What are your responsibilities if you feel you
have been a victim of sexual harassment?
ANSWER The victim has the responsibility to let
the harasser know that the conduct is offensive
and should also report any instance of sexual
harassment to a supervisor or the personnel
department.
Good Job!
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Legal Medical Practice Models

• Be aware of laws governing the practice model of
  your place of employment
• Five types of practice models
• Sole proprietorship
• Single physician
• Partnership
• Two or more physicians practice together
• Contract specifies rights, obligations, and
  responsibilities

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Legal Medical Practice Models (cont.)

• Professional corporation
• Corporation is a body formed and authorized by
  law to act as a single entity
• Physicians who form corporations are shareholders
  and employees of the organization
• Incorporators and owners have limited liability
  in case lawsuits are filed

• Group practice
• Three or more licensed physicians
• Physicians share the collective income, expenses,
  facilities, equipment, records, and personnel for
  the practice

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Legal Medical Practice Models (cont.)

• Clinics
• Broad in their range of specialties and
  sub-specialties
• Locations
• In hospital
• Freestanding urgent care
• In-store

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Apply Your Knowledge
What is the difference between a group practice
and a professional corporation?
ANSWER A group practice is three or more
physicians who share the practice income,
expenses, and facilities. In a professional
corporation the physicians are shareholders and
employees of the corporation.
Right!
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In Summary

• 3.1 Ethics deals with general principles of
  right and wrong. Allied health professionals are
  expected to do the right thing in all aspects.
  Bioethics arise from issues that deal with
  medical advances.
• 3.2 The four Cs of malpractice prevention are
  caring, communicating, competency, and charting
  properly.
• 3.3 Medical documentation is essential.

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In Summary (cont.)

• 3.4 Federal legislation affects health care.
• 3.5 OSHA regulations state that the medical
  assistant must
• Have protective gear
• Know how to properly decontaminate
• Know how to dispose properly of sharp equipment
• Notify officials of exposure incidents
• Have a post-exposure evaluation and follow-up
  procedures
• Know how to handle potentially infectious laundry
  
• Be informed about hazardous materials

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In Summary (cont.)

• 3.6 When an exposure incident occurs, the medical
  assistant must immediately notify the
  physician/employer or supervisor.
• 3.7 Quality controls have regulated set standards
  that seek quality in the work performed and
  accuracy of test results after the work is
  performed.
• 3.8 HIPAA (Health Insurance Portability and
  Accountability Act) regulations have a great
  impact in the medical office today because they
  address issues such as health-care fraud and
  abuse, medical liability reform, and
  standardizing patient information throughout the
  health-care system.

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End of Chapter 3
Let no one come to you without leaving better
and happier. Mother Theresa