Legal and Ethical Issues for Healthcare Professionals

Prepared by: Dr. Alber Paules, CPHQ

Introduction
Although healthcare organizations may operate as sole proprietorships or partnerships, most functions as corporations.
The corporation has a governing body that has ultimate responsibility for the decisions made in the organization.

The governing body, having ultimate responsibility for the operation and management of the organization, generally delegates responsibility for the day-to-day operations of the organization to the organization's chief executive officer (CEO).

Professional Liability of Healthcare Providers

Tort:
is a civil wrong committed against a person or property. In the US, a tort law exists; its basic objectives include: 1) discourage the wrongdoer from committing future torts, 2) indemnify the injured person.
Negligence: Negligence is a tort. Negligence means lack of proper and reasonable care; this is to be judged by peers. A negligent professional is the one who does what a reasonable person would not do and is the one who would fail to do what a reasonable person would do, under like circumstances and training. Malpractice is considered as negligence or carelessness of a professional person. (e.g., a nurse, pharmacist, and physician)

Professional Liability of Healthcare Providers

Healthcare organizations, which are legally responsible for the actions of their employees, are prone to face negligence. When this occurs, this indicates the failure of the healthcare organization to exercise the required reasonable degree of care. In order for a patient to prove that a healthcare provider is liable for negligence, the patient must show that: (1) the healthcare provider owed a duty to the patient, (2) the healthcare provider failed to meet or breached this duty, (3) injury or actual harm resulted to the patient, and (4) there is a causal relationship between the negligent conduct and the resulting injury/damage.

Professional Liability of Healthcare Providers

Without harm or injury, there is no liability. The mere occurrence of injury does not establish negligence for which the law imposes liability, since the injury may be the result of an unavoidable accident or an act of God. Negligence has two forms. It is either an unintentional commission or omission of an act.

Professional Liability of Healthcare Providers

Commission of an act would include: 1) administrating the wrong medication, 2) administrating the wrong dosage of medication, 3) administrating medication to the wrong patient, and 4) performing a surgical process without patient consent. Omission of an act would include: 1) failing to prescribe medications that should have been prescribed under the circumstances, 2) failing to order diagnostic tests that should have been ordered under the circumstances, and 3) failing to follow up on abnormal test results.

Professional Liability of Healthcare Providers N.B.

A nurse is considered negligent, and thus liable, in any of the following situations:
Failure to follow physician orders; Failure to report significant changes in a patient's condition; Failure to take verbal or telephone orders correctly; Patient falls; Failure to report defective equipment.

Professional Liability of Healthcare Providers

Duty to Care: Duty is defined as "a legal obligation of care, performance, or observance imposed on one to safeguard the rights of others".
A duty to care carries with it a responsibility not only to provide care, but also to provide it in an acceptable manner.

Duties of health care providers include conforming to recognized standards of care, providing timely & appropriate care and hiring competent staff.

Professional Liability of Healthcare Providers

Sources of professional liability include the following legal doctrines:
Corporate liability: It is the legal responsibility of
the healthcare organization to provide reasonable care and safe environment to its patients/customers, to provide functioning equipment and supplies, and to select all persons who practice within the organization with care with commitment to supervise them. A governing body can be held liable for a wrongful action beyond its scope of authority.

Professional Liability of Healthcare Providers

Sources of professional liability include the following legal doctrines:
Respondeat Superior doctrine "let the master be
responsible/answer" (other name: Vicarious liability= indirect responsibility for others' acts): the employer is liable for negligent/wrongful acts for its employees. The underlying rationale assumes that the employer possesses the duty to control the conduct/physical acts of its employees and that the employer is in a better financial position to compensate the victim. Because the law holds negligent persons responsible for their negligent acts, employees are not absolved from liability as well.

Professional Liability of Healthcare Providers

Sources of professional liability include the following legal doctrines:
Ostensible agency doctrine: liability exposures for
healthcare organizations are extended to include the acts of non-employed, independent contractor physicians.

Res ipsa loquitur (= clear evidence): allows the patient

to prove her/his case without the necessity of expert testimony to establish the standard of care in this case. Here, there is clear and obvious negligence that has resulted in injury. (e.g.) surgical sponge or instrument left in the patient's abdomen during surgery.

Corporate Compliance
In healthcare, compliance means "providing and billing for services according to the laws, regulations, and guidelines that govern the organization. In many healthcare organizations, a Chief Compliance Officer (CCO) is responsible to establish and oversee processes necessary to prevent or quickly identify any inaccurate billing practices or actual misbehavior that might results in errors identified as fraudulent and abusing practices.

Corporate Compliance
The CCO collaborates with a Corporate Compliance Committee, which is responsible for operating and monitoring the compliance program, and which reports to the CEO and the governing body. Regular and effective educational and training programs should be developed by the organization for employees with potential to put the organization at risk, and for physicians and nurses. Training and educational programs should include: corporate ethics, fraud and abuse laws, billing processes, and ethical management styles.

Patient Advocacy Program

Patients comprise a large segment of a healthcare organization's customers. Healthcare organizations rely on their customers, particularly their patients for viability in the community. Thus, it is crucial for any healthcare organization to be sensitive to its patient needs in order to improve customer satisfaction. For any healthcare organization, patient satisfaction should be of the same importance as having a competent staff, advanced diagnostic and therapeutic equipment, and improved patient outcomes.

Patient Advocacy Program

Improved patient satisfaction begins with the recognition of basic patient's rights. Important components of any patient advocacy program include policies addressing patient rights (e.g.) management of patient complaints and inquiries. Patients should be informed of their rights upon entry into a healthcare organization; this can be achieved through giving them/their families printed handouts/pamphlets detailing patient's rights at the admission office or through posting this information in patients' rooms, hallways, and lounges.

Patient Advocacy Program

The following statements are examples of such type of information:
You have the right to receive considerate and respectful care. You have the right to be informed about your diagnosis, condition, and treatment in terms that you can perceive. You have the right to participate in the development and implementation of your plan of care. Your access to care will not be denied due to any of the following individual characteristics: ethnicity, religion, or source of payment. It is our responsibility to keep all your personal and medical information confidential and inaccessible except to your assigned team of care.

Patient Advocacy Program

Processing Complaints
Tracking and trending patients' concerns, inquiries, and complaints about services received can provide valuable information to the organization regarding patient satisfaction, and subsequently regarding the quality of care given to patients. All information should be categorized, aggregated, and analyzed with appropriate recommendations made and actions taken. This is valuable information which should be a part of any organization's performance improvement process.

Patient Advocacy Program

Processing Complaints
Concerns of patients are not only confined to the clinical outcomes, patients are also concerned about the physical environment or structure in which the care is delivered (e.g.) adequate parking spaces, short waiting times, timely availability of appointments, and respect for patient privacy and comfort. Patients are also concerned about how care is delivered (e.g.) how attentive caregivers are to the patient and caregivers' willingness to listen to patients.

Appropriate management and handling of patient's concerns, inquiries and complaints is vital to achieving patient's satisfaction.

Advance Directives
Patients have the right to make decisions about their health care with their physician. They may agree to a proposed treatment, choose among offered treatments, or say no to a treatment.

Patients have this right even if they become incapacitated and are unable to make decisions regarding their conditions. In this case, the decision is made in advance.

Advance Directives
Advance Directive: a statement executed by a person while of sound mind as to that persons wishes about the use of medical interventions for him or her self in case of the loss of his or her decision-making capacity. Advance directives allow the patient to state in advance all kinds of medical care that he/she considers acceptable or not acceptable. The patient can appoint an agent, a surrogate decision maker; to make those decisions on his/her behalf.

Advance Directives
When admitted into the hospital, the patient should be informed about the possibility and opportunity to develop his/her own advance directive.

This interaction should be documented in the patient's medical record.

The patient can execute a new directive at any time if desired. The patient should be periodically queried as to whether he/she wishes to make any changes with regard to an advance directive.

Advance Directives
Examples of interventions that patients might refuse include: Feeding tubes fixation. Resuscitation.

Patient Confidentiality
It is the duty of staff and employees working at a healthcare organization to maintain confidentiality of both verbal and written communications regarding a patient's condition or personal information. Information about a patient is confidential and should not be disclosed without the patient's permission. Those who come into possession of the most intimate personal information about patients have both a legal and an ethical duty not to reveal confidential communications.

Patient Confidentiality
Medical records, with proper authorization, may be used for the purposes of research, statistical evaluation, and education.

The information obtained from medical records must be dealt with in a confidential manner; otherwise, an organization could incur liability.

Patient Consent
Consent is the voluntary agreement by person who possess sufficient mental capacity to make an intelligent choice to allow something proposed by another to be performed on himself or herself. Consent must be obtained from the patient, or from a person authorized to consent on the patient's behalf (due to patient's age or incapacity), before any medical procedure can be performed.

Patient Consent
Every individual has a right to refuse to authorize a touching. If written, the consent should be kept in the patient's medical record. Consent can be either express or implied.

Patient Consent
Express consent can take the form of either a "verbal" agreement or can be accomplished through the execution of a "written" document authorizing medical care. Oral consent is more difficult to corroborate, while the written consent provides a visible proof of the patient's wishes.
Implied consent is determined by some act or silence, which raises a presumption that consent has been authorized (e.g.) emergency consent, patient who voluntarily gives his arm to the physician to receive an injection.

Patient Consent
N.B. Informed consent:
It is a legal concept that provides that a patient has a right to know the potential risks, benefits, and alternatives of a proposed procedure. It is the duty of the physician to disclose to the patient sufficient information to enable the patient to evaluate a proposed medical or surgical procedure before submitting to it. Informed consent requires that a patient have a full understanding of that to which he or she has consented. Getting an informed consent from the patient is the treating physician responsibility.

Patient Consent
N.B. Emergency consent:
When immediate treatment is required to preserve the life of a patient or to prevent an impairment of the patient's health, and it is impossible to obtain the consent of the patient or representative legally authorized to consent for him/her, an emergency exists and consent is implied.

The patient's record, in this case, should clearly indicate the nature of the threat to life or health, its immediacy, and its magnitude.