Component 1 unit 6 lecture c: Medicine, professional liability, and medical malpractice
The objectives for this unit are describe medical law, discuss what is meant by standard of care, define statute of limitations, and describe the Good Samaritan Laws.
Every state has a law that describes how medicine will be practiced within the state. This Act usually establishes the medical board for the state and protects the health and safety of the public. This board establishes the licensure standards, credentials, and sanction processes and procedures, as well as define unprofessional conduct.
So, how does the law relate to medicine? Here are some examples as how the law relates to medicine:
Tort law- (intentional) a patient can sue a physician for medical or physical injury caused by the physician or the physician’s employee
Battery (unlawful touching)- no procedure can be performed without a patient’s consent: offering an arm to a phlebotomist to allow a blood draw is implied consent.
Another example is fraud. Fraud can be committed by a physician with fraudulent billing practices—especially Medicare and Medicaid. This would be treating a patient for one disease and billing for a more expensive disease treatment. An example of an unintentional tort is when a patient is injured as a result of health care professional not performing at the accepted standard of care.
Unintentional torts also include
Negligence- The failure or omission to perform professional duties to the accepted standard of care or without adequate training. This can be charged when a physician performs surgery and does not stitch the patient’s wound prior to discharging the patient.
Professional misconduct or practicing medicine with an unreasonable lack of skill is called malpractice.
Standard of care refers to the reasonable skill and care that medical practitioners such as physicians, nurses, physician assistants, medical assistants, and phlebotomists must use according to their licensure and certification. All health care professionals must perform duties within their scope of practice—duties that they are allowed to perform.
8 principles by which health care professionals live…
1. Beneficence- Helping others and engaging in activities that would benefit another
2. Fidelity- Loyalty and faithfulness to others. Implies that we will do what we are supposed to do.
3. Sanctity of human life- hold human life sacred.
4. Integrity- Living by one’s principles, no matter what happens
5. Honesty- Truthfulness in any situation
6. Empathy- To understand a person’s feelings, even though one has never experienced another’s pain or anguish
7. Sympathy- feeling sorry for another
8. Compassion- Gentle, caring attitude towards all
The Prudent person rule states that a health care professional must give information to a patient that a reasonable person would desire before making a decision about diagnosis, risks and consequences of treatment, expected benefits, alternative treatments, prognosis with no treatment, and costs including the amount of expect pain. If a patient is diagnosed with cancer, the provider should tell the patient the diagnosis, the risks and consequences of the preferred treatment, what the patient can expect to happen as a result of receiving treatment, alternative treatments, how long they can live with no treatment, and the cost of treatment and the amount of pain they will experience.
If a health care professional engages in professional misconduct or demonstrates an unreasonable lack of skill that results in injury, loss, or damage to a patient, this is medical malpractice. The key term here is unreasonable lack of skill. For example, if a dermatologist performs a heart surgery, you can probably assume the dermatologist has an unreasonable lack of skill because that is not his/her area of specialization. Just because a physician goes to medical school, it does not mean that all physicians know how to perform surgery. Now, if the dermatologist tried to conceal the fact that he/she was a dermatologist because they could make alot of money by performing the surgery, this is fraud. Fraud is intentional concealment of the facts from another person for an unlawful or unfair gain.
The tort of negligence has 3 aspects: malficence- doing evil by performing wrong or illegal act, misficence- improper performance of an otherwise proper or lawful act, and nonficence- failure to perform a necessary action. Examples include malficence- doing CPR on a person who’s heart is beating, misficence could be breaking a patient’s ribs due to improper hand positions during CPR on a patient’s whose heart had stopped, and nonficence is not performing CPR on an individual whose heart had stopped
Negligence is based on the 4 D’s: duty, dereliction of duty, direct or proximate cause, and damages. There must be a duty established—the physician must have the duty to care for the patient. Next, the physician must have failed to perform his duty correctly. The patient’s injuries must be the result of direct or proximate cause. And finally, there must be damages to the patient. If the 4 D’s are not proven, the case cannot be defined as negligence.
There is a time limit for a patient to file a lawsuit and this is called the statute of limitations. The court will not hear a case if it was filed after the statute of limitations has been reached. The clock starts running after the problem is discovered or shold have been discovered. This law varies by state.
The Good Samaritan laws. These are state laws that proState laws that protect the liability of a health care professional when providing emergency care to a victim. These laws do not protect the liability of a health care professional at work. These laws are to encourage health care professionals to help victims during emergencies.
The physician-patient relationship puts specific responsibilities on a physician. This is duty. Duty of due care states that every healthcare professional owes a duty to act as a reasonable, prudent person with average intelligence would under the same or similar circumstances.
The Duty of due care also states that a health care professional is held to the standard of care as exercised by similar health care professionals in the same or similar community or geographic region. This standard never varies for a particular profession—physicians are compared with physicians, nurses compared with nurses, etc. So when a court is trying to decide if a health care professional exercised the duty of due care the health care professional will be compared with other professionals in their specialty and from their geographical region to see if the person acted as a reasonable person with average intelligence.
Proximate cause states that there is a cause and effect relationship between the action of the health care provider and the injury to the patient. If it cannot be shown that the actions of the health care provider caused the injury, there is no proximate cause.
The Office of the Inspector General is the legal arm of the Department of Health and Human Services. This office provides legal services to DHS and it represents the federal government in civil cases. It has the authority to impose monetary penalties on health care providers found guilty of fraud. The monetary penalties can be very large. This is the agency that also issues fraud alerts.
Component 1/Unit 6cHealth IT Workforce Curriculum1
Version 1.0/Fall 2010