Chapter 10 Allied Professionals Legal Responsibilities

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Chapter 10Allied ProfessionalsLegal
Responsibilities
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Dying at the Hospitals Door

• Communications Breakdown
• A Childs Death
• A Lawsuit Occurs
• A Court Awards Damages
• But What Has Changed?
• Lessons Learned
• Triage the Patient
• Dont make hasty judgments about a patient who
  arrives at the Emergency Department Entrance

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Chiropractor I

• Standard of care required
• degree of care, judgment, skill exercised by
  other reasonable chiropractors under like or
  similar circumstances.

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ChiropractorCase Immoral Conduct

• Conspiracy to manufacture distribute misbranded
  substance.
• Introduced misbranded adulterated drugs into
  interstate commerce with intent to defraud.
• District appellate courts found chiropractors
  conduct immoral.
• Chiropractors denial now, after taking advantage
  of a plea bargain, that he committed any of the
  acts he admitted to in the U.S. district court is
  disturbing not consistent with integrity
  expected by persons engaged in a professional
  occupation.
• See text case Poor v. State

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Dentistry Cases I

• Drill Bit Left in Tooth
• Failure to Refer
• Lack of Consent
• Removal of teeth without consent
• Failure to prescribe antibiotics
• Risk of not prescribing an antibiotic is that
  bacteria can flow through the bloodstream to the
  heart.

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Dentistry Cases II

• Infection Control
• Failure to Wear Protective Gloves
• Practicing Outside Scope of Competecy
• Dentist performed several elective cosmetic
  procedures including a face lift, eyelid
  revision, and facial laser resurfacing.
• Dental Hygienist Administers Nitrous Oxide
• Failure to Supervise Dental Assistant

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Emergency Department

• Objectives of Emergency Care
• treatment must begin as rapidly as possible
• function is to be maintained or restored
• scarring deformity are to be minimized
• treatment regardless of ability to pay.

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No Duty to PatientWho Left ED Untreated

• In a wrongful death medical malpractice action
  alleging negligence, the trial court properly
  granted summary judgment because under Ohio law,
  an emergency room nurse had no duty to interfere
  with an individual who left the ED without
  telling anyone and who refused treatment.
• See text case Griffith v. University Hospitals
  of Cleveland

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Failure to Admit

• Physician was found negligent in failing to
  hospitalize the patient or failing to inform her
  of the serious nature of her illness. The trial
  court found that had the patient been
  hospitalized on her first visit, her chances of
  survival would have been increased.
• See text case Roy v. Gupta

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Documentation Sparse Contradictory

• ED physician failed to evaluate the patient to
  initiate care within first few minutes of
  patient's entry into the emergency facility. The
  emergency physician had an obligation to
  determine who was waiting for physician care
  how critical the need was for that care.
• See text case Fenney v. New England Medical Ctr.

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EMTALA I

• In 1986, Congress passed the Emergency Medical
  Treatment and Active Labor Act (EMTALA) that
  forbids Medicare-participating hospitals from
  dumping patients out of EDs.

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EMTALA42 U.S.C.A. 1395dd(a) (1992)

• in the case of a hospital that has a hospital
  emergency department, if any individual (whether
  or not eligible for benefits under this
  subchapter) comes to the emergency department and
  a request is made on the individual's behalf for
  examination or treatment for a medical condition,
  the hospital must provide for an appropriate
  medical screening examination within the
  capability of the hospital emergency department,
  including ancillary services routinely available
  to the emergency department, to determine whether
  or not an emergency medical condition . . .
  exists.

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Emergency Medical Condition

• (A) a medical condition manifesting itself by
  acute symptoms of sufficient severity (including
  severe pain) such that the absence of immediate
  medical attention could reasonably be expected to
  result in (i) placing the health of the
  individual (or, with respect to a pregnant woman,
  the health of the woman or her unborn child) in
  serious jeopardy . . . .

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EMTALA Text Cases

• Limited to Actions Against Hospital
• Patient Screening Appropriate
• Stabilizing the patient
• Discharge Found Appropriate
• Screening and Discharge Appropriate
• Transfer Prior to Stabilizing Patient
• Inappropriate Transfer

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Wrong Record Fatal Mistake I

• Terry was taken to the hospital after being
  injured in an automobile accident.
• Upon ordering discharge, the ED physician had not
  realized that he had made a fatal mistake. The
  physician looked at the wrong chart in
  determining Terry's status, thus discharging
  Terry.
• Terry slumped died at home in his father's arms
  as his head slumped forward.
• See text case Trahan v. McManus
• Who is responsible for Terrys death?

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Wrong Record Fatal Mistake II

• The ED physician by his own admissions stated
  that he acted negligently when he discharged
  Terry and that his actions led to Terry's death.
• See text case Trahan v. McManus

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Duty to Contact On-Call Physician

• Hospitals are expected to notify specialty
  on-call physicians when their particular skills
  are required in the ED. A physician who is on
  call fails to respond to a request to attend a
  patient can be liable for injuries suffered by
  the patient.
• Failure to Respond to Call
• Timely Response Required
• Notice of Inability to Respond to Call

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Telephone Medicine Costly I Futch v. Attwood

• Lauren's was taken to the hospital ED. Hospital
  personnel contacted the physician by phone. He
  returned the call prescribed a Phenergan
  injection. He did not go to the hospital had
  not been given Lauren's vital signs when he
  suggested such an injection, further failed to
  order any blood or urine tests. Hospital records
  revealed that Laurens glucose level was 507 at
  the time of admission. Lauren's went into
  respiratory failure eventually died.
• Was the physician liable for practicing telephone
  medicine?

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Yes!

• The trial court allocated 98,000 for the
  conscious pain suffering of Lauren. The
  defendant complained that the award of 98,000
  was excessive. On appeal, the appellate court
  could not find that the trial court had erred in
  concluding what sum was fair to both parties.

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Preventing ED Lawsuits I

• Treat each patient courteously and promptly
• Treat all patients regardless of ability to pay
• Triage and treat seriously ill patients first
• Communicate with the patient and the patients
  family to ensure that a complete and accurate
  picture of the patients symptoms and complaints
  are obtained
• Provide an appropriate examination of the patient
  based on the presenting complaint/s and symptoms
  (failure to do this may be the single most common
  and sometimes fatal mistake in emergency
  departments)

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Preventing ED Lawsuits II

• Require consultations when determined necessary
• Establish on-call lists for specialists
• Ensure all caregivers are effectively
  communicating with one another
• Provide continuing education programs for all
  staff members
• Obtain patient consent for procedures

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Preventing ED Lawsuits III

• Institute a preventive maintenance program for
  emergency department equipment
• Determine which diagnoses can be safely addressed
  within the organization
• Make appropriate arrangements, when required, for
  transfer

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Preventing ED Lawsuits IV

• Hospitals need to determine what types of
  patients levels of care they can safely
  address. If there are several hospitals in a
  community, they must learn to communicate with
  one another include emergency medical services
  personnel in addressing transport care issues.

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The Right Hospital? - I

• If Hospital A has no neurologist, neurosurgeon,
  or stroke team Hospital B, 1-mile away has all
  of that plus a Level I trauma center, would it be
  fair to say that a suspected stroke victim should
  be transported to Hospital B?

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The Right Hospital? IIYes!

• Its is not just any hospital, it is the right
  hospital that saves lives
• Taking the patient to hospital A raises both
  ethical and legal issues
• Under what circumstances would hospital B be the
  first hospital of choice?

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The Right Hospital? - III

• When there is no other hospital within a
  reasonable distance to stabilize the patient.

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EDs Vital to Public Safety

• The hospital itself has come to be perceived as
  the provider of medical services. According to
  this view, patients come to the hospital to be
  cured, and the doctors who practice there are the
  hospital's instrumentalities, regardless of the
  nature of the private arrangements between the
  hospital and the physician. Whether or not this
  perception is accurate seemingly matters little
  when weighed against the momentum of changing
  public perception and attendant public
  policy.Martin C. McWilliams, Jr. Hamilton E.
  Russell, III, Hospital Liability for Torts of
  Independent Contractor Physicians, 47 S.C. L.
  REV. 431, 473 (1996).

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State Regulations

• Legislation in many states imposes a duty on
  hospitals to provide emergency care. The statutes
  implicitly, and sometimes explicitly, require
  hospitals to provide some degree of emergency
  service.

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Laboratory

• Georgetown U. Hospital Shuts Lab After Problems
  With Cancer Tests
• Georgetown University Hospital has shut down a
  lab that performs genetic analysis for breast
  cancer patients and has had 249 womens tissue
  samples independently retested while federal
  officials investigate procedures at the lab. 
• The Washington Post, Lena H. Sun, August 6, 2010
  

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Laboratory Services - I

• An organization's lab provides data that are
  vital to a patient's treatment. The lab monitors
  therapeutic ranges, measures blood levels for
  toxicity, places monitors instrumentation on
  patient units, provides education for the nursing
  staff (e.g., glucose monitoring), provides
  valuable data utilized in research studies,
  provides data on the most effective and
  economical antibiotic for treating patients,
  serves in a consultation role, provides valuable
  data as to the nutritional needs of patients . .
  . .

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Laboratory Services II

• Failure to follow transfusion protocol
• Mismatched blood
• Refusal to work with certain specimens
• Lost Chance of Survival Pap Smear
• Court determined evidence relating to negligence
  claims pertaining to Pap tests taken more than 2
  years before filing the action were admissible
  because the patient had a continuing relationship
  with the clinical laboratory as a result of her
  physician submitting her Pap tests to the
  laboratory over a period of time.
• See Text Case Sander v. Geib, Elston, Frost
  Profl Assn

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Medical Assistant

• An unlicensed person who provides administrative,
  clerical, and/or technical support to a licensed
  practitioner.
• Employment of medical assistants is expected to
  grow much faster than the average for all
  occupations.
• Those in large practices tend to specialize in a
  particular area, under supervision.

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Medical Imaging

• Negligence in medical imaging tests therapies
  often involve a failure to protect patients from
  falls the negligent handling of equipment.
• X-ray Cassette Falls on Patients Head
• See text case Schopp v. Our Lady of the Lake
  Hospital
• Poor Communications

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Nutritional Services

• Need to provide nutrition
• Failure to do so can result in a lawsuit
• Nursing facility patients highly vulnerable
• Lambert v. Beverly Enterprises
• Patient suffered malnutrition
• Motion to dismiss case denied

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Paramedic

• Protected by Good Samaritan Statutes
• Inability to Diagnose the Extent of Injury
• Lidocaine Administered 44 Times Normal Dosage
• Failure to Transport Patient
• Paramedic License Denied

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Pharmacy

• Immense variety complexity of medications
• Impossible for nurses or doctors to keep up with
  the information required for safe medication use
• Pharmacist has become an essential resource in
  modern hospital practice

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Government Control of Drugs

• Federal Controls
• Controlled Substance Act
• Federal, Food, Drug Cosmetic Act
• State Regulations
• Distribution, Dispensing, Administration
• Storage of drugs
• Drug substitution
• Hospital formulary

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Mediations Helpful Tips - I

• Be sure handwriting is legible print if
  necessary.
• For clarity, do not use felt-tip pens.
• Abbreviations should be used per hospital policy.
• Do not write ambiguous orders.
• Always add a zero prior to a decimal.
• Hold orders should be accompanied by a time frame.

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Mediations Helpful Tips - II

• Know about the meds that you are prescribing
• Be sure medications have been properly deluded
  before administering
• Be sure that medications are properly
  administered at the proper time in the prescribed
  dosage by the correct route ( e.g., IV,
  intramuscular, oral)

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Expanding Role ofPharmacists - I

• Duty to monitor patients medications
• Computer systems monitor for
• Drug-drug interactions
• Drug-food interactions
• Warning Patients - Potential for Overdose
• Refusal to Honor Questionable Prescription

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Expanding Role ofPharmacists - II

• Limited Duty to Warn
• Pharmacists cannot possibly warn caregivers
  patients of every potential danger of a drug
• Refusal to Fill a Prescription
• Failure to Consult with the Patients Physician

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Common Medication Errors Prescription Errors

• wrong patient
• wrong drug
• inappropriate drug ordered due to known drug
  allergies, drug-drug and food-drug interactions
• wrong dose
• wrong route
• wrong frequency
• transcription errors (due to illegible
  handwriting improper use of abbreviations)
• inadequate review of medication for
  appropriateness

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Common Medication ErrorsDispensing Errors

• Improper preparation of medication
• Failure to properly formulate medications
• Dispensing expired medications
• Mislabeling containers
• Wrong patient
• Wrong dose
• Wrong route
• Misinterpretation of physician order

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Common Medication ErrorsDocumentation Errors

• Transcription errors (often due to illegible
  handwriting improper use of abbreviations)
• Inaccurate transcription to medication
  administration record (MAR)
• Charted but not administered
• Administered but not documented on the MAR
• Discontinued order not noted on the MAR
• Medication wasted and not recorded

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Physical TherapyIncorrectly Interpreting
Physicians Orders - I

• Plaintiff alleged that defendant failed to
  exercise degree of care skill ordinarily
  exercised by physical therapists, failed to heed
  his protests that he could not perform the
  physical therapy treatments she was supervising,
  failed to stop performing treatments after he
  began to complain he was in pain.
• Plaintiffs expert testified defendant deviated
  from standard of care by introducing a type of
  exercise not prescribed by the physician.
• Courts Finding?
• See Text Case Pontiff, in Pontiff v. Pecot
  Assoc.

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Incorrectly Interpreting Physicians Orders - II

• For the Plaintiff!
• The appeals court found that the trial court was
  correct in its determination that the plaintiff
  presented sufficient evidence to show that this
  duty was breached that therapists care fell
  below the standard of other physical therapists.

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Termination of Contracted Services - I

• Hospital claimed that its attempt to establish a
  hospital-based physical therapy program would
  have been disrupted if the independent therapist
  had been permitted to continue treating patients.
  
• What was the courts decision?
• See Text case Armintor v. Community Hospital of
  Brazosport

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Termination of Contracted Services - II

• For the Hospital!
• Exclusion of a therapist is an administrative
  matter within the board's discretion.a

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NEGLECT

• Physical therapist had been charged with resident
  neglect for refusing to allow an 82-year-old
  nursing facility resident to go to the bathroom
  before starting his therapy treatment session.
  See text case Zucker v. Axelrod

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Physical Therapist License Revoked

• Physical therapist was found to have been
  properly revoked in several other states. See
  text case Girgis v. Board of Physical Therapy

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Physicians Assistant

• PAs as physician extenders
• Scope of practice defined by each state
• PAs responsible for own negligent acts
• Respodeat Superior the employer of a PA can also
  be liable for the PAs negligent acts

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Podiatrist

• The legal concerns of podiatrists, similar to
  those of surgeons, include misdiagnosis and
  negligent surgery.
• Podiatrist in Strauss v. Biggs was found to have
  failed to meet the standard of care required of a
  podiatrist that failure resulted in injury to
  the patient. The podiatrist, by his own
  admission, stated that his initial incision in
  the patient's foot had been misplaced.
• Podiatrist acted improperly by failing to refer
  the patient, stop the procedure after the first
  incision, inform the patient of possible nerve
  injury . . . .

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Respiratory Therapist

• Failure to Remove Endotracheal Tube
• Multiple Use of Same Syringe
• Restocking the Code Cart

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Security

• Hospitals have a duty to implement maintain
  reasonable measures to protect patients from the
  criminal acts of third parties. However, if an
  attack and injury to a patient is not
  foreseeable, the hospitals actions cannot be the
  proximate cause of the patients injuries.

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Assault in the ED

• Patient in was sitting in the ED waiting room
  when a teenage boy, D.G., arrived with his
  mother. After they had all sat in the waiting
  room for a short period of time, D.G. walked up
  to Lane began to hit her on her right arm
  shoulder. Lane's son-in-law, who had accompanied
  her to the emergency room, jumped to her aid
  struck D.G., knocking him to the floor. The
  attack stopped and nothing further happened. Lane
  suffered some injuries as a result of the attack.
• Is the hospital liable for Lanes injuries?

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No!

• Evidence in this case depicts a situation in
  which the attack upon Lane by D.G. was unexpected
  no other evidence was designated to the trial
  court from which it could have concluded that the
  specific actions of D.G. on the day in question
  were foreseeable. The court was bound to conclude
  that the attack injury was not foreseeable,
  that the center's actions were not the proximate
  cause of Lane's injuries that the center is
  entitled to judgment as a matter of law.

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Failure to Provide Adequate Security

• A hospital can be found liable for failing to
  provide adequate security.
• see text case Hanewinckel v. St. Pauls
  Property Liab.

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Sexual Improprieties

• Dentist
• Nurse
• Osteopath
• Physician
• Psychiatrist

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Surgery

• Improper positioning of arm
• Sciatic nerve injury

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Certification of Healthcare Professionals

• Recognition by a governmental or professional
  association that an individual's expertise meets
  the standards of that group.
• Some professional groups establish their own
  minimum standards for certification in those
  professions that are not licensed by a particular
  state.
• Certification by an association or group is a
  self-regulation credentialing process.

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Licensing Healthcare Professionals

• Process by which a competent authority grants
  permission to a qualified individual to perform
  certain specified activities that would be
  illegal without a license.
• Licensure refers to the process by which
  licensing boards, agencies, or departments of the
  several states grant to individuals who meet
  certain predetermined standards legal right to
  practice in a health care profession to use a
  specified health care practitioner's title.

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Licensing Healthcare Professionals, cont

• Commonly stated objectives of licensing laws are
  to limit control admission to the different
  health care occupations to protect the public
  from unqualified practitioners by promulgating
  enforcing standards of practice within the
  professions.

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Suspension Revocation of License

• Licensing boards have authority to suspend or
  revoke the license of a health care professional
  found to have violated specified norms of
  conduct. Such violations may include
• procurement of a license by fraud
• unprofessional, dishonorable, immoral, or illegal
  conduct
• performance of specific actions prohibited by
  statute and malpractice.

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Helpful Advice for Caregivers

• Abide by the ethical code of ones profession.
• Do not criticize the professional skills of
  others.
• Maintain complete and adequate medical records.
• Provide each patient with medical care comparable
  with national standards.
• Seek the aid of professional medical consultants
  when indicated.
• Obtain informed consent for all procedures

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Helpful Advice for Caregivers, cont

• Inform the patient of the risks, benefits,
  alternatives to proposed procedures.
• Do not indiscriminately prescribe medications or
  diagnostic tests.
• Practice the specialty in which you have been
  trained.
• Participate in continuing education programs.
• Keep patient information confidential.
• Check equipment monitor it for safe use.

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Helpful Advice for Caregivers, cont

• When terminating a professional relationship with
  a patient, provide adequate written notice to the
  patient.
• Authenticate all telephone orders.
• Obtain a qualified substitute when you will be
  absent from your practice.
• Investigate patient incidents promptly.
• Be a good listener, allow each patient
  sufficient time to express fears and anxieties.
• Develop implement an interdisciplinary plan of
  care for each patient.

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Helpful Advice for Caregivers, cont

• Safely administer patient medications.
• Closely monitor each patients response to
  treatment.
• Provide education teaching to patients.
• Foster a sense of trust feeling of
  significance.
• Communicate with the patient other caregivers.
• Provide cost-effective care without sacrificing
  quality.

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REVIEW QUESTIONS

• 1. What was the reasoning for enacting the
  Emergency Medical Treatment and Active Labor Act?
• 2. Comment on the statement A sexual
  impropriety committed by a health care
  practitioner should be handled in the
  institution, not in court.
• 3. Should medical advice be dispensed on the
  telephone? Explain your opinion.

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REVIEW QUESTIONS, cont

• 4. Discuss why the prescribing, control,
  administration, and monitoring of medications has
  become a major area of legal concern for health
  care professionals.
• 5. Describe the difference between the
  certification and licensing of a health care
  professional.