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8.3 HIPAA’s Privacy and Security Rules 185 11.3 Genetic Engineering 265
8.4 Controlling Health Care Fraud and Abuse 192 11.4 Conception and the Beginning of Life 270
Chapter Review 200 11.5 Rights of Children 273

9
Chapter Review 281

12
Chapter 9
Public Health Responsibilities of Chapter 12
Health Care Practitioners 205 Death and Dying 286
9.1 Vital Statistics 206 12.1 Attitudes Toward Death and the Determination of
Death 287
9.2 Public Health Functions 209
12.2 Legal Documents for Terminally Ill Patients 290
9.3 Reportable Diseases and Injuries 210
12.3 Health Care Services for Terminally Ill
9.4 Drug Regulations 220
Patients 293
Chapter Review 226

10
12.4 The Right to Die Movement 296
12.5 The National Organ Transplant Act 301
Chapter 10 12.6 The Grieving Process 304
Workplace Legalities 232 Chapter Review 309

10.1 Basic Employment Law 233
10.2 OSHA’s Workplace Priorities 240
10.3 OSHA, CDC, and CLIA Guidelines and
­Regulations 241
10.4 Workers’ Compensation and Unemployment
­Insurance 247
10.5 Hiring and the New Employee 248
Chapter Review 252
13
Chapter 13
Stakeholders, Costs, and Patients’
Rights 316
13.1 The Stakeholders 317
13.2 Cost of Health Care 321
13.3 Access and Quality 326

11
13.4 Paying for Health Care 332
Chapter 11 13.5 Patients’ Bill of Rights 335
Chapter Review 340
The Beginning of Life and
­Childhood 258 Glossary 345
11.1 Family History as a Predictor 260 Index 352
11.2 DNA Testing 262

Contents vii
This page intentionally left blank
About the Authors
Karen Judson, BS
Karen Judson has taught college and high school sciences and grades kindergarten, one, and
three. Judson has also worked as a laboratory and X-ray technician and completed 2 years of
nursing while earning a degree in biology. Judson has also published numerous science and
relationship articles and books for adult and young adult readers.

Carlene Harrison, EdD, CMA (AAMA)

Carlene Harrison was an administrator in a variety of outpatient health care facilities for 20
years in Colorado, Texas, and Florida. She became a full-time faculty member at Hodges Uni-
versity in 2000 serving first as a professor and program chair in both medical assisting and
health administration. In 2007, she was named Dean of the School of Allied Health. During
her 15 years at Hodges, she was responsible for adding six academic programs to the School
of Allied Health, retiring in 2015. Even though she is retired from full-time academia, she
continues to work part time at a local public health department, coordinating with universities
and colleges to provide a variety of internships and clinicals for students in the fields of pub-
lic health, nursing, medicine, health information technology, dietetics, and social work.

About the Authors ix

 Preface
Law and Ethics: For Health Professions explains how to
navigate the numerous legal and ethical issues that
health care professionals face every day. Topics are based
upon real-world scenarios and dilemmas from a variety
of health care practitioners. Through the presentation
of Learning Outcomes, Key Terms, From the Perspective
of . . ., Ethics Issues, Chapter Reviews, Case Studies,
Internet Activities, Court Cases, and Videos, students
learn about current legal and ethical problems and sit-
uations. In the ninth edition, material has been revised
to reflect the current health care environment. As stu-
dents progress through the text, they will get the oppor-
tunity to use critical thinking skills to learn how to
resolve real-life situations and theoretical scenarios and
to decide how legal and ethical issues are relevant to the
health care profession in which they will practice.
New to the Ninth Edition
A number of updates have been made in the ninth edi-
tion to enrich the user’s experience with the product,
including revisions to most of the “From the Perspective
Of ...” features in each chapter:
• Chapter 5, “Professional Liability,” now includes the
book’s coverage of informed consent.
• Chapter 7, “Medical Records and Health Informa-
tion Technology,” provides more information about
electronic health records and updated information
about social media applications in health care.
• Chapter 10, “Workplace Legalities,” contains the
updated OSHA priorities.
• Chapter 11, “The Beginning of Life and Childhood,”
includes updated information about genetic testing.
• Chapter 13, “Stakeholders, Costs, and Patients’
Rights,” discusses the changing face of health care
from a business perspective and includes a review
of the basic types of insurance coverage. It also con-
tains a discussion of patients’ rights.
• All statistics and court cases have been updated, as
well as content relevant to laws passed since the
eighth edition.
x Preface
• Connect has been updated to reflect updates in the
chapters and feedback from customers. It contains
all Check Your Progress questions, all end-of-
chapter questions, additional Case Studies with
related questions, and simple interactives.
• MHE Application-Based Activities are highly inter-
active, automatically graded online exercises that
provide students a safe space to practice using
problem-solving skills to apply their knowledge to
realistic scenarios. Each scenario addresses key
concepts and skills that students must use to work
through and solve course specific problems, result-
ing in improved critical thinking and relevant work-
place skills.
• Connect Law and Ethics for Health Professions
Application-Based Activities: Video Cases
▪▪ Students watch different scenarios and are
instructed on the different laws and ethical
considerations that are relevant to those
scenarios. Students apply their knowledge
of the subject by answering periodic ques-
tions throughout each video.
▪▪ For the 9th edition, 5 of the 13 videos con-
tain brand-new scenarios.
For a detailed transition guide between the eight and
ninth editions of Law & Ethics, visit the Instructor
Resources in Connect!
To the Student
As you study to become a health care provider, you
have undoubtedly realized that patients are more than
the sum of their medical problems. In fact, they are
people with loved ones, professions, worries, hobbies,
and daily routines that are probably much like your
own. However, because patients’ lives and well-being
are at stake as they seek and receive health care, in
addition to seeing each patient as an individual, you
must carefully consider the complex legal, moral, and
ethical issues that will arise as you practice your pro-
fession. And you must learn to resolve such issues in
an acceptable manner.
 Law & Ethics provides an overview of the laws and
ethics you should know to help you give competent,
compassionate care to patients that is also within accept-
able legal and ethical boundaries. The text can also serve
as a guide to help you resolve the many legal and ethical
questions you may reasonably expect to face as a student
and, later, as a health care provider.
To derive maximum benefit from Law & Ethics:
• Review the Learning Outcomes and Key Terms at
the beginning of each chapter for an overview of the
material included in the chapter.
• Complete all Check Your Progress questions as they
appear in the chapter, and correct any incorrect answers.
• Review the legal cases to see how they apply to top-
ics in the text, and try to determine why the court
ruled as it did.
• Study the Ethics Issues at the end of each chapter,
and answer the discussion questions.
• Complete the Review questions at the end of the
chapter, correct any incorrect answers, and review
the material again.
• Review the Case Studies, and use your critical
thinking skills to answer the questions.
• Complete the Internet Activities at the end of the
chapter to become familiar with online resources
and to see what additional information you can find
about selected topics.
• Complete the Connect assignments from your
instructor, including any SmartBook modules
assigned, as well as additional Case Studies and the
Application-Based Activities (Video Cases).
• Study each chapter until you can answer correctly
questions posed by the Learning Outcomes, Check
Your Progress, and Review questions.
Instructor Resources
You can rely on the following materials to help you and
your students work through the material in this book.
All of the resources in the following table are available
in the Instructor Resources under the Library tab in
­Connect (available only to instructors who are logged into
Connect).

Supplement
Instructor’s Manual
PowerPoint Presentations
Electronic Test Bank
Tools to Plan Course
Features
Each chapter includes:
• Learning Outcomes
• Overview of PowerPoint Presentations
• Teaching Points
• Answer Keys for Check Your Progress and End-of-Chapter Questions
• Key Concepts
• Accessible
• Computerized and Connect
• Word version
• Questions are tagged with learning outcomes, level of difficulty, level of
Bloom’s taxonomy, feedback, topic, and the accrediting standards of ABHES and
CAAHEP, where appropriate
• Transition Guide, by chapter, from Law & Ethics, 8e to 9e
• Correlations by learning outcomes to ABHES and CAAHEP
• Sample syllabi
• Asset Map—a recap of the key instructor resources, as well as information on the
content available through Connect

Want to learn more about this product? Attend one of
our online webinars. To learn more about the webinars,
please contact your McGraw-Hill Learning Technology
Representative. To find your McGraw-Hill representative,
go to www.mheducation.com and click “Get Support,”
select “Higher Ed,” and then click the “GET STARTED”
button under the “Find Your Sales Rep” section.
Need help? Contact McGraw-Hill Education’s Cus-
tomer Experience Group (CXG). Visit the CXG Web site
at www.mhhe.com/support. Browse the FAQs (Fre-
quently Asked Questions) and product documentation
and/or contact a CXG representative.
Preface xi
 ®

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Top: Jenner Images/Getty Images, Left: Hero Images/Getty Images, Right: Hero Images/Getty Images Preface xiii
 Guided Tour
Chapter Openers
The chapter opener sets the stage for what will be learned in the chapter. Key terms are first introduced in
the chapter opener so the student can see them all in one place; they are defined in the margins throughout
the chapter for easy review, as well as in the glossary. Learning Outcomes are written to reflect the revised
version of Bloom’s taxonomy and to establish the key points the student should focus on in the chapter. In
addition, major chapter heads are structured to reflect the Learning Outcomes, and the Learning Outcomes for
easy reference. From the ­Perspective of . . . boxes illustrate real-life experiences related to the text. Each
quotes health care providers as they encounter problems or situations relevant to the material about to be
presented in the chapter.

FROM THE PERSPECTIVE OF. . .

LINDA AND CAROL HAVE BEEN FRIENDS FOR ABOUT 4 YEARS.
THEY ARE BOTH RETIRED from careers in health care. Linda had been
a medical records supervisor in a 500-bed hospital and Carol had been
an LPN in a family practice and was married to a physician who had
retired, but still had an active license in another state. They met at the

1
©Stockbyte/Getty Images local gym after retirement. They get together every few weeks for either

Introduction to Law
and Ethics
LEARNING OUTCOMES
After studying this chapter, you should be able to:
LO 1.1 Explain why knowledge of law and ethics is
important to health care practitioners.
LO 1.2 Define law, ethics, and moral values as used in
health care by health care practitioners.
LO 1.3 Discuss the characteristics and skills most likely
to lead to a successful career in one of the
health care professions.
COURT CASE Patients Sue Hospitals
In 2018, lawsuits against a variety of hospitals, phy-
sicians, lawyers, nursing homes, and even power
companies that were moving through various courts
included:
• A dermatologist posted videos of herself sing-
ing and dancing during cosmetic surgery. Four
malpractice suits have already been settled,
including one by a woman who suffered perma-
nent brain damage following surgery. Several
other lawsuits are expected to be filed in the
coming months. Source: www.abajournal.com
• Frightened into surgery by a medical litigation
law company, an Arkansas woman had surgery
to remove vaginal mesh. She has filed a lawsuit
against her former law firm and the litigation
funding company that financed the operation as
lunch or a movie. Over time, a friendship developed.
One day at lunch, the conversation was about health issues. Carol
talked about the variety of her chronic health problems that required
medication. She was a Medicare insured patient. Initially, several medi-
cations cost over $1,000 a month. Carol had them filled in Canada for
$400 a month, but the Canadian company went out of business. She
Key Terms began to use her Medicare plan at $1,000 a month. In the meantime,
she discovered that her sister’s health plan would cover all but $50 of
bioethicists the monthly cost of any medication. Her sister had private insurance.
bioethics Carol admitted to Linda that her husband had written a prescription for
codes of ethics
her sister for one of the expensive medications. Her sister lived in the
common sense
compassion state where Carol’s husband still had a medical license. Carol’s sister
courtesy filled the prescription and sent it to her.
critical thinking Linda recently was diagnosed with endometrial cancer. She had a
defendant
radical hysterectomy and then began chemotherapy. Her oncologist
ethics
ethics committees prescribed Zofran for any nausea or vomiting. Linda had used only 3
ethics guidelines of the 30 tablets when she finished chemotherapy. She mentioned that
etiquette to Carol.
fraud
health care practitioner
The lunch discussion changed to other topics and Linda decided to
Hippocratic oath forget about the conversation, as she knew what Carol’s husband had
liable done was illegal. Carol’s sister had also violated the law.
litigious The next time Linda and Carol got together, the conversation was
law
medical ethicists
about vacations. Carol was going on a 3-week cruise, and she mentioned
moral values that she sometimes got a little seasick. She asked Linda if she could have
plaintiff
precedent
her remaining Zofran tablets. Linda quickly changed the subject and
Carol did not bring it up again.
protocol
From Carol’s perspective, it was all about saving money. She knew
she now has permanent incontinence.
summary judgment Source: what her husband had done was wrong, but felt justified in having
www.abajournal.com her husband and sister commit a minor crime. She thought that since
• In Florida, family members of nursing home no one was harmed, and she was helped, that her behavior was not
patients who died during Hurricane Irma are that bad.
suing nursing home administrators and staff From Linda’s perspective, she was uncomfortable about learning what
for failing to evacuate the facility after the air
Carol and her family had done, but decided to ignore it as the end result
was that Carol had her needed medication. She did a bit of research and
conditioning crashed and the temperature learned that Zofran was not used to treat seasickness, and she already
spiked. The families are also suing Florida
knew that it wasn’t all that expensive. She decided that if Carol brought
Power and Light for failing to prioritize nursing it up again, she was going to tell Carol that she had thrown the medi-
home power restoration. Source: www.miamiherald cation away, since she no longer needed it.
.com
(All of the above cases were still in litigation as the
1
ninth edition of Law & Ethics for Health Professions
As you progress through Law & Ethics for the Health Professions, try to
was prepared for publication, but perhaps the interpret the court cases, laws, case studies, and other examples or sit-
underlying reasons for filing the lawsuits are already uations cited from the perspectives of everyone involved.
apparent to you.)
2 Chapter 1 | Introduction to Law and Ethics

COURT CASE 911 Operators Sued Court Cases

In 2006, just before 6 pm, a 5-year-old boy called The boy’s older sister sued the two 911 operators on Several court cases are presented
911. He told the 911 operator that his “mom has behalf of the dead woman’s estate and on behalf of
passed out.” When the operator asked to speak her son. The lawsuit alleged gross negligence causing in every chapter. Each summarizes
to the boy’s mother, he said, “She’s not gonna a death and intentional infliction of emotional distress.
talk.” The operator scolded the boy and logged
the call as a child’s prank. Three hours later, the
The 911 operators argued that they were entitled
to government immunity, that they owed no duty to
a lawsuit that illustrates points
boy called 911 again. A different operator answered,
and she also scolded the boy for playing a prank,
provide assistance to the woman who died, and that
their failure to summon medical aid was not gross
made in the text and is meant to
but she did send a police officer to the boy’s
home. The officer discovered the boy’s mother
negligence.
A trial court and an appeals court found for the
encourage students to consider
lying unresponsive on the floor and summoned
emergency medical services. The EMS workers
plaintiff, and the case was appealed to the Michigan
Supreme Court, where in January 2012, the court
the subject’s relevance to their
arrived 20 minutes later and determined that the
woman was dead and had probably died within
denied further appeals.
Source: Estate of Turner v. Nichols, 807 N.W.2d 164, 490 Mich.
health care specialty. The legal
the past 2 hours. 988 (2012).
citations at the end of each case
indicate where to find the com-
material fact. In other words, a motion for summary judgment states that
one party is entitled to win as a matter of law. Summary judgment is
plete text for that case. “Land-
available only in a civil action. (Chapter 4 distinguishes between criminal
and civil actions.)
mark” cases are those that
The following court cases illustrate that a wide variety of legal ques-
tions can arise for those engaged directly in providing health care ser- established an ongoing precedent.
vices, whether in a hospital, in a medical office, or in an emergency
situation. Health care equipment and product dealers and manufacturers

Chapter 1 | Introduction to Law and Ethics 5

xiv Guided Tour

 In the American cultural environment, however, acting morally toward
another usually requires that you put yourself in that individual’s place.
For example, when you are a patient in a physician’s office, how do you
like to be treated? As a health care provider, can you give care to a
person whose conduct or professed beliefs differ radically from your
own? In an emergency, can you provide for the patient’s welfare without
reservation?

Check Your P
­ rogress Check Your Progress
Questions 1. Name two important reasons for studying law and ethics.
These questions appear at 2. Which state laws apply specifically to the practice of medicine?
various points in the chapters 3. What purpose do laws serve?
4. How is the enforcement of laws made possible?
to allow students to test their
5. What factors influence the formation of one’s personal set of ethics and values?
comprehension of the material 6. Define the term moral values.
they just read. These ques-
Learning Outcome Summary
7. Explain how one’s moral values affect one’s sense of ethics.
LO 2.3 Define the What are the basic principles of health care ethics?
tions can also be answered
basic principles of
health care ethics.
in • Autonomy or self-determination
• Beneficence
Connect. • Nonmaleficence
Chapter 1 | Introduction to Law and Ethics 9

• Justice
•
End-of-Chapter
Confidentiality
• Role fidelity
• Veracity
What are social determinants of health? Resources
• Living conditions that affect health, such as shelter, food, income, education, a stable environment,
sustainable resources, social justice and equity. The Chapter Summary is in a
What is health disparity?

• Living conditions that affect health, such as shelter, food, income, education, a stable environment,
tabular, step-by-step format orga-
sustainable resources, social justice and equity.
What is health equity?
nized by Learning Outcomes to
• Striving for the highest possible standard of health for all people and giving special attention to the
needs of those at greatest risk of poor heath, based on social conditions.
help with review of the material.
Ethics Issues are issues and
related discussion questions
based on interviews conducted
Chapter 2 Review
with ethics counselors within the
Applying Knowledge professional organizations for
25. A medical assistant greetsLOa patient
2.1 and states “I am Jonathan and I will be your medical assistant today.”
This is an example of 1. What is another term for your personal concept of right and wrong?
health care providers, as well as
a. Empathy a. Utilitarianism c. Common sense with bioethics experts. Each
b. Trustworthiness d. Courtesy
b. Beneficence Chapter Review includes Apply-
c. Moral values
Ethics ISSUE 3:
d. Role fidelity
ing Knowledge questions that
Ethics Issues Martha is the
Introduction
2. Why did Tomto administrative
End-of-Chapter assistant to Valerie,
Ethics
and Bill, in this chapter’s
the practice manager in a five-physician practice. Salaries of
Discussions
opening scenario, come to different
staff are confidential. Since payroll is handled by an outside company, only the practice manager has knowledge
reinforce the concepts the stu-
ofdecisions?
who makes what salary. Valerie has gone to lunch and left her door open. Several people have been in and
Learning Outcomes for the out
Ethics Issues
of Valerie’s
a. Because Feature
office
of their at theoffEnd
dropping
age differences of Each
reports Chapter
or other information. Martha goes in the office to place a report on dents have just learned. These
Valerie’s deskEthics
and notices that a budget worksheet
be ablelisting
to: all staff salaries is in clear view. It would be easy to
After studying the material in each
take
chapter’s
b. Because
a quick of look,
Issues feature,
differences
especiallyinsince
you should
theirMartha
societal,believes
cultural,
sheand family
is paid lessinfluences
than other employees with fewer responsibil- questions can be answered in
1. Discuss current ethical issuesities.
of concern
Marthaof to health care
backs practitioners.
c. Because theirout of the
different office and locks
relationships withValerie’s door without looking at the sheet. She thinks to herself,
their supervisor Connect. Case Studies are sce-
2. Compare ethical guidelines to If the
I should
law asnotdiscussed
know what in everyone else isofbeing
each chapter paid, then no one else should either.
the text.
d.Curtis
None isofone theseof the employees who had left information on Valerie’s desk before Martha closed the door. He
3. Practice critical thinking skills as you consider medical, legal, and ethical issues for each situation presented.
3. also
Howsees the budgetMaslow’s
is Abraham sheet buttheory
does not stop to look at
of needs-based it. It did not
motivation bestoccur to him to look at it, although it would
defined?
narios with exercises that allow
have been
4. Relate the ethical issues presented in thegreat
texttotoknow that hecare
the health wasprofession
being paidyou more thantoother
intend employees. He puts his file down on Valerie’s
practice.
a. It and
desk is a thinks
five-stepto progression
himself, I will that
warnseesValerie
pleasure
that as
shethe primary
needs motivation
to be more careful for all what
about humanshe leaves on her desk students to practice their critical
Health care practitioners are bound behavior.
by state and federal laws, but they are also bound by certain ethical stan-
for anyone to see.
dards—both personal standards and those set forth by professional codes of ethics and ethical guidelines and by
b. It is a progression
bioethicists. Many professional organizations for healthcalled beneficence. employ an ethics consultant who is
care practitioners
thinking skills to decide how to
Discussion Question
available to speak with organization members who need help with an ethical dilemma. “We serve as a third
c. ItAccording
19.
party who can stand outside a situation
is a theory to that
virtue
and facilitate
says human
ethics, whobehavior
communication,” is says
moreDr.is based on specific
ethical—Martha,
Carmen Paradis, thean human
one needstothat
tempted
ethics
must often be met in a
con- look but doesn’t, or Curtis,
resolve the real-life situations
specific
who isn’t order.
even tempted toAtlook? Defend your answer.
sultant with the Cleveland Clinic’s Department
available to health care practitioners,
d. Itpatients,
is a system
of Bioethics.
family members,
of moral
the Cleveland Clinic, ethics consultations are
and others involved with patient decisions.
values.
and theoretical scenarios pre-
Medical facility ethics committees can also serve as consultants. In larger health care facilities, such commit-
tees usually deal with institutional matters, but in smaller communities where ethics consultants may not be
sented. Internet Activities
available, members of an ethics40 committeeChaptermay2 | Making
Case Studies
Ethical Decisions
also function as ethics consultants.
Keep in mind as you read the Ethics Issues feature for each chapter that ethical guidelines are not law but
include exercises designed to
deal solely with ethical conduct for health care practitioners. Most guidelines published for professional health
care practitioner organizations emphasize
Use your this difference.
critical thinkingFor example,
skills as stated
to answer in Guidelines
the questions thatfor Ethical
follow Conduct
each case study.
increase students’ knowledge of
for the Physician Assistant Profession:
the chapter topics and help
Physician Assistants are expected
LO 2.3to behave both legally and morally. They should know and understand
the laws governing their practice. Likewise, they should understand the ethical responsibilities of being
Susan, a nursing student, is arguing with her friend Linda, also a nursing student, over the benefits of getting
a health care professional. Legal requirements and ethical expectations will not always be in agreement.
them gain more internet
a flu shot.
Generally speaking, the law describes minimum standards of acceptable behavior, and ethical principles
“I’m not
delineate the highest moral standards getting a flu shot this year,” Linda declares. “I paid $14 for one last year, and I still got sick. I had
of behavior. research expertise.
a horrible sinus infection that kept me out of school for days.”
Source: www.aapa.org/wp-content/uploads/2017/02/16-EthicalConduct.pdf, ©American Academy of PAs.
“I remember, but that wasn’t the flu,” Susan argues. “Since we see so many people in the clinic—especially
Internet Activities
The ethical guidelines for variousolder
is that health care practitioners are
healthpeople with weakened
care professions
the obligated
flu?”
have immune systems—don’t
several points in common, youbut
think
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to provide the best care possible for every patient and to protect
andofforemost
all people, should be immunized against

the safety, privacy, and welfare of every The argument

patient. continues at length, with Linda finally raising her voice and stomping off.
LOState
2.3 and federal laws may differ somewhat from an ethical principle. For example, a state’s law may not
20. In your opinion, is the question of whether or not the nursing students should get a flu vaccination an
require
Complete physicians to routinely
the activities inquire
and answer theabout physical,
questions that sexual, and psychological abuse as part of a patient’s
follow.
ethics question? Explain your answer.
medical history, but the physician may feel an ethical duty to his or her patients to do so.
25.Furthermore,
Locate the Web site that
the fact for the organization
21.
a healthIf care
you deciderepresenting whothe
that this
practitioner anprofession
ishas you with
ethicscharged
been plan
question, to
which practice.
theory
illegal Check
of
conduct moral the orga- best applies?
reasoning
is acquitted
nization’s code of ethics. Does the code conform to
or exonerated does not necessarily mean that the health care practitioner the seven principles
actedofethically.
health care ethics? Explain
your answer. Ethan is an orderly in a skilled nursing care facility. He is charged with supervising patients in the dining room
The term ethical as used here refers to matters involving the following:
on a day when two of his coworkers have called in sick, leaving the facility shorthanded. On this day, several
26. Visit the
1. Moral Web site
principles or for the National
practices patients Center
seem more for Ethics
irritablein than
Health Careand
usual, at www.ethics.va.gov. In the list of
Ethan is kept busy preventing outbursts and calming them. He also
resource publications, click worrieson any of the patients
about subjects prone
listed. toWhich linkepisodes
choking did you choose?
and findsHow might
himself theseharried and stressed.
feeling
2. Matters of social policy involving issues of morality in the practice of medicine
resources prove useful to you?Wallace, an 80-year-old confined to a wheelchair, demands that Ethan help him back to his room. “It’s a
The term unethical refers to professionalmadhouse conduct
in here that fails to
today,” heconform to these
shouts. Ethan moralhestandards
knows or policies.
cannot leave his post and panics when Wallace heads for
27.The
Visit Santaissues
ethical Clararaised
University’stheWeb
are from thesite:www.scu.edu/ethics/practicing/decision/.
door. real-life experiences of a variety of health care Under “What is ethics?”
practitioners and are
list three
recounted things that,
throughout according
the text to raisetoawareness
Ethan the site,ahead
runs ethics
of theofare not. Do
ethical
Wallace, you the
dilemmas
shuts agree?
manyExplain
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face
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daily
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stimulate longer available, do a Web search for “framework for thinking ethically.” What was the number one
result for this search, and how 22. might
Has Ethan acted use
you make ethically?
of the Explain
source?)your answer.
22 23.
Chapter 1 | Introduction to Law andWhat
Ethics wouldyou do in a similar situation? Use steps one through five for ethical decision making to reach
a solution. Describe how each step was used.
24. Do you believe your solution is more ethical than Ethan’s? Why or why not?

Chapter 2 | Making Ethical Decisions 43

Guided Tour xv
Acknowledgments
Author Acknowledgments
Karen Judson
Thank you to the editorial team and pro-
duction staff at McGraw-Hill and all the
reviewers and sources who contributed
their time and expertise to making the
ninth edition of Law & Ethics for Health
Professions the best ever. Thank you, too,
Carlene, for your hard work on this ninth
edition.
Carlene Harrison
A big thank you to Karen Judson for get-
ting me started on this marvelous adven-
ture called textbook writing over 14 years
ago.
To our reviewers, your contributions really
make a difference. The editorial and pro-
duction staff at McGraw-Hill did a great
job. And last, to my husband, Bill, your
support and love keep me going.
Reviewer Acknowledgments
Suggestions have been received from fac-
ulty and students throughout the country.
This is vital feedback that is relied on for
product development. Each person who
has offered comments and suggestions
has our thanks. The efforts of many peo-
ple are needed to develop and improve a
product. Among these people are the
reviewers and consultants who point out
areas of concern, cite areas of strength,
and make recommendations for change. In
this regard, the following instructors pro-
vided feedback that was enormously help-
ful in preparing the book and related
products.
xvi Acknowledgments
9e Technical Editing/Accuracy
Panel
A panel of instructors completed a
technical edit and review of the content
in the book page proofs to verify its
accuracy.
Erika Bailey, MBA, RHIA
Grand Valley State University
Denese Davis, BSN, Med, RHIT
Wiregrass Georgia Technical College
Susan Holler, MSEd, CPC, CCS-P,
CMRS
Bryant & Stratton College
Tylette Lloyd, MS RT®
Ivy Tech Community College
Beverly Marquez, MS, RHIA
State Fair Community College
Amie L. Mayhall, MBA, RHIA, CCA
Olney Central College
Jillian McDonald, BS, RMA(AMT), EMT,
CPT(NPA)
Goodwin College
Victoria L. Mills, MBA, RHIA
Gordon State College
Michelle Ruggiero, MsEd
Bryant & Stratton College
Sharon Turner, MS, CMC, CMIS, CHI,
CBS, CEHRS, CMAA
Brookhaven College
Erica Wilson, MS, MHA, RHIA, CPC
Southern Regional Technical College
Digital Tool Development
Special thanks to the instructors who
helped with the development of
Connect and SmartBook, especially
with review feedback. They include:
Julie Alles, DHA, RHIA
Grand Valley State University
Angela M. Chisley, AHI, RMA, CMA,
AMCA
Gwinnett College
Latoya Dennard Davis, RHIT
Albany State University
Laura Diggle, MS, CMA
Ivy Tech Community College
Terri Fleming, EdD
Ivy Tech Community College
Debra Glover, RN, BSN, MSN
Goodwin College
Janis A. Klawitter, AS, CPC, CPB,
CPC-I, Provider Audits/Analytics
Bakersfield Family Medical Center
Samuel Newberry DC
Bryant & Stratton College
Janna Pacey, DHA, RHIA
Grand Valley State University
Kristi Perillo-Okeke, DC, CMRS
Bryant & Stratton College
Shauna Phillips, RMA, AHI, CCMA,
CMAA, CPT
PIMA Medical Institute
Kemesha Spears, CUTAIL
Albany State University
 1
©Stockbyte/Getty Images

Introduction to Law
and Ethics
Key Terms
bioethicists
bioethics
LEARNING OUTCOMES codes of ethics
common sense
After studying this chapter, you should be able to: compassion
courtesy
LO 1.1 Explain why knowledge of law and ethics is critical thinking
important to health care practitioners. defendant
ethics
ethics committees
LO 1.2 Define law, ethics, and moral values as used in
ethics guidelines
health care by health care practitioners. etiquette
fraud
LO 1.3 Discuss the characteristics and skills most likely health care practitioner
to lead to a successful career in one of the Hippocratic oath
liable
health care professions.
litigious
law
medical ethicists
moral values
plaintiff
precedent
protocol
summary judgment

1
 FROM THE PERSPECTIVE OF. . .
LINDA AND CAROL HAVE BEEN FRIENDS FOR ABOUT 4 YEARS.
THEY ARE BOTH RETIRED from careers in health care. Linda had been
a medical records supervisor in a 500-bed hospital and Carol had been
an LPN in a family practice and was married to a physician who had
retired, but still had an active license in another state. They met at the
local gym after retirement. They get together every few weeks for either
lunch or a movie. Over time, a friendship developed.
One day at lunch, the conversation was about health issues. Carol
talked about the variety of her chronic health problems that required
medication. She was a Medicare insured patient. Initially, several medi-
cations cost over $1,000 a month. Carol had them filled in Canada for
$400 a month, but the Canadian company went out of business. She
began to use her Medicare plan at $1,000 a month. In the meantime,
she discovered that her sister’s health plan would cover all but $50 of
the monthly cost of any medication. Her sister had private insurance.
Carol admitted to Linda that her husband had written a prescription for
her sister for one of the expensive medications. Her sister lived in the
state where Carol’s husband still had a medical license. Carol’s sister
filled the prescription and sent it to her.
Linda recently was diagnosed with endometrial cancer. She had a
radical hysterectomy and then began chemotherapy. Her oncologist
prescribed Zofran for any nausea or vomiting. Linda had used only 3
of the 30 tablets when she finished chemotherapy. She mentioned that
to Carol.
The lunch discussion changed to other topics and Linda decided to
forget about the conversation, as she knew what Carol’s husband had
done was illegal. Carol’s sister had also violated the law.
The next time Linda and Carol got together, the conversation was
about vacations. Carol was going on a 3-week cruise, and she mentioned
that she sometimes got a little seasick. She asked Linda if she could have
her remaining Zofran tablets. Linda quickly changed the subject and
Carol did not bring it up again.
From Carol’s perspective, it was all about saving money. She knew
what her husband had done was wrong, but felt justified in having
her husband and sister commit a minor crime. She thought that since
no one was harmed, and she was helped, that her behavior was not
that bad.
From Linda’s perspective, she was uncomfortable about learning what
Carol and her family had done, but decided to ignore it as the end result
was that Carol had her needed medication. She did a bit of research and
learned that Zofran was not used to treat seasickness, and she already
knew that it wasn’t all that expensive. She decided that if Carol brought
it up again, she was going to tell Carol that she had thrown the medi-
cation away, since she no longer needed it.

As you progress through Law & Ethics for the Health Professions, try to
interpret the court cases, laws, case studies, and other examples or sit-
uations cited from the perspectives of everyone involved.

2 Chapter 1 | Introduction to Law and Ethics

1.1 Why Study Law and Ethics?
There are two important reasons for you to study law and ethics:
• To help you function at the highest possible professional level, pro-
viding competent, compassionate health care to patients
• To help you avoid legal entanglements that can threaten your ability
to earn a living as a successful health care practitioner health care practitioners
Those who are trained to administer
We live in a litigious society, in which patients, relatives, and others are medical or health care to patients.
inclined to sue health care practitioners, health care facilities, manufac- litigious
turers of medical equipment and products, and others when medical Prone to engage in lawsuits.
outcomes are not acceptable. This means that every person responsible
for health care delivery is at risk of being involved in a health care–
related lawsuit. It is important, therefore, for you to know the basics of
law and ethics as they apply to health care, so you can recognize and
avoid those situations that might not serve your patients well or that
might put you at risk of legal liability.
In addition to keeping you at your professional best and helping you
avoid litigation, knowledge of law and ethics can also help you gain
perspective in the following three areas:
1. The rights, responsibilities, and concerns of health care consumers.
Health care practitioners not only need to be concerned about how
law and ethics impact their respective professions but they must
also understand how legal and ethical issues affect the patients they
treat. With the increased complexity of medicine has come the
desire of consumers to know more about their options and rights
and more about the responsibilities of health care providers. Today’s
health care consumers are likely to consider themselves partners
with health care practitioners in the healing process and to question
fees and treatment modes. They may ask such questions as, Do I
need to see a specialist? If so, which specialist can best treat my
condition? Will I be given complete information about my condi-
tion? How much will medical treatment cost? Will a physician treat
me if I have no health insurance?
In addition, as medical technology has advanced, patients have
come to expect favorable outcomes from medical treatment, and
when expectations are not met, lawsuits may result.
2. The legal and ethical issues facing society, patients, and health care prac-
titioners as the world changes. Nearly every day the media report news
events concerning individuals who face legal and ethical dilemmas
over biological/medical issues. For example, a grief-stricken husband
must give consent for an abortion in order to save the life of his
critically ill and unconscious wife. Parents must argue in court their
decision to terminate life-support measures for a daughter whose
injured brain no longer functions. Patients with HIV/AIDS fight to
retain their right to confidentiality.
While the situations that make news headlines often involve
larger social issues, legal and ethical questions are resolved daily, on
a smaller scale, each time a patient visits his or her physician,
dentist, physical therapist, or other health care practitioner. Ques-
tions that must often be resolved include these: Who can legally
give consent if the patient cannot? Can patients be assured of

Chapter 1 | Introduction to Law and Ethics 3


plaintiff
The person bringing charges in a
lawsuit.
defendant
The person or party against whom
criminal or civil charges are brought in
a lawsuit.
liable
Legally responsible or obligated.
precedent
Decisions made by judges in the vari-
ous courts that become rule of law and
apply to future cases, even though they
were not enacted by a legislature; also
known as case law.
summary judgment
A decision made by a court in a lawsuit
in response to a motion that pleads
there is no basis for a trial.
4 Chapter 1 | Introduction to Law and Ethics
confidentiality, especially since computer technology and online
access have become a way of life? Can a physician or other health
care practitioner refuse to treat a patient? Who may legally examine
a patient’s medical records?
Rapid advances in medical technology have also influenced laws
and ethics for health care practitioners. For example, recent court
cases have debated these issues: Does the husband or the wife have
ownership rights to a divorced couple’s frozen embryos? Will a sur-
rogate mother have legal visitation rights to the child she carried to
term? Should modern technology be used to keep those patients
alive who are diagnosed as brain-dead and have no hope of recovery?
How should parenthood disputes be resolved for children resulting
from reproductive technology?
3. The impact of rising costs on the laws and ethics of health care delivery.
Rising costs, both of health care insurance and of medical treatment
in general, lead to questions concerning access to health care ser-
vices and allocation of medical treatment. For instance, should the
uninsured or underinsured receive government help to pay for health
insurance? And should everyone, regardless of age or lifestyle, have
the same access to scarce medical commodities such as organs for
transplantation or very expensive drugs?
COURT CASES ILLUSTRATE RISK OF LITIGATION
As you will see in the court cases used throughout this text, sometimes
when a lawsuit is brought, the trial court or a higher court must first
decide if the plaintiff has a legal reason to sue, or if the defendant is
liable. When a court has ruled that there is a standing (reason) to sue
and that a defendant can be held liable, the case may proceed to reso-
lution. Often, once liability and a standing to sue have been established,
the two sides agree on an out-of-court settlement. Depending on state
law, an out-of-court settlement may not be published. For this reason,
the final disposition of a case is not always available from published
sources. The published cases that have decided liability, however, are
still case law, and such cases have been used in this text to illustrate
specific points.
In addition, sometimes it takes time after the initial trial for a case to
be settled. For example, perhaps a patient dies after surgery in 2018, and
the family files a wrongful death suit soon after. The case may go through
several appeals and finally be settled in 2022.
It is also important to remember that while the final result of a case
is important to the parties involved, from a legal standpoint, the most
important aspect of a court case is not the result but whether the case
represents good law and will be persuasive as other cases are decided.
Although recent cases published have been sought for illustration in
this text, sometimes a dated case (1995, 1970, 1980, 1991, etc.) is used
because it established important precedent.
Court cases appear throughout each chapter of the text to illustrate
how the legal system has resolved complaints brought by or against
health care service providers and product manufacturers. Some of these
cases involve summary judgment. Summary judgment is the legal term
for a decision made by a court in a lawsuit in response to a motion that
pleads there is no basis for a trial because there is no genuine issue of
 COURT CASE Patients Sue Hospitals
In 2018, lawsuits against a variety of hospitals, phy-
sicians, lawyers, nursing homes, and even power
companies that were moving through various courts
included:
• A dermatologist posted videos of herself sing-
ing and dancing during cosmetic surgery. Four
malpractice suits have already been settled,
including one by a woman who suffered perma-
nent brain damage following surgery. Several
other lawsuits are expected to be filed in the
coming months. Source: www.abajournal.com
• Frightened into surgery by a medical litigation
law company, an Arkansas woman had surgery
to remove vaginal mesh. She has filed a lawsuit
against her former law firm and the litigation
funding company that financed the operation as
she now has permanent incontinence. Source:
www.abajournal.com
• In Florida, family members of nursing home
patients who died during Hurricane Irma are
suing nursing home administrators and staff
for failing to evacuate the facility after the air
conditioning crashed and the temperature
spiked. The families are also suing Florida
Power and Light for failing to prioritize nursing
home power restoration. Source: www.miamiherald
.com
(All of the above cases were still in litigation as the
ninth edition of Law & Ethics for Health Professions
was prepared for publication, but perhaps the
underlying reasons for filing the lawsuits are already
apparent to you.)

COURT CASE 911 Operators Sued

In 2006, just before 6 pm, a 5-year-old boy called
911. He told the 911 operator that his “mom has
passed out.” When the operator asked to speak
to the boy’s mother, he said, “She’s not gonna
talk.” The operator scolded the boy and logged
the call as a child’s prank. Three hours later, the
boy called 911 again. A different operator answered,
and she also scolded the boy for playing a prank,
but she did send a police officer to the boy’s
home. The officer discovered the boy’s mother
lying unresponsive on the floor and summoned
emergency medical services. The EMS workers
arrived 20 minutes later and determined that the
woman was dead and had probably died within
the past 2 hours.
The boy’s older sister sued the two 911 operators on
behalf of the dead woman’s estate and on behalf of
her son. The lawsuit alleged gross negligence causing
a death and intentional infliction of emotional distress.
The 911 operators argued that they were entitled
to government immunity, that they owed no duty to
provide assistance to the woman who died, and that
their failure to summon medical aid was not gross
negligence.
A trial court and an appeals court found for the
plaintiff, and the case was appealed to the Michigan
Supreme Court, where in January 2012, the court
denied further appeals.
Source: Estate of Turner v. Nichols, 807 N.W.2d 164, 490 Mich.
988 (2012).

material fact. In other words, a motion for summary judgment states that
one party is entitled to win as a matter of law. Summary judgment is
available only in a civil action. (Chapter 4 distinguishes between criminal
and civil actions.)
The following court cases illustrate that a wide variety of legal ques-
tions can arise for those engaged directly in providing health care ser-
vices, whether in a hospital, in a medical office, or in an emergency
situation. Health care equipment and product dealers and manufacturers

Chapter 1 | Introduction to Law and Ethics 5


fraud
Dishonest or deceitful practices in
depriving, or attempting to deprive,
another of his or her rights.
can be held indirectly responsible for defective medical devices and prod-
ucts through charges of the following types:
• Breach of warranty
• Statements made by the manufacturer about the device or product
that are found to be untrue
• Strict liability, for cases in which defective products threaten the
personal safety of consumers
• Fraud or intentional deceit (Fraud is discussed in further detail in
Chapters 4 and 8.)

LANDMARK COURT CASE  upreme Court Shields Medical Devices

S
from Lawsuits
An angioplasty was performed on a patient, Charles
Riegel, in New York. During the procedure, the cath-
eter used to dilate the patient’s coronary artery
failed, causing serious complications. The patient
sued the catheter’s manufacturer, Medtronic, Inc.,
under New York state law, charging negligence in
design, manufacture, and labeling of the device,
which had received Food and Drug Administration
(FDA) approval in 1994. Medtronic argued that Riegel
could not bring state law negligence claims because
the company was preempted from liability under
Section 360k(a) of the Medical Device Amendments
(MDA) of the U.S. Food, Drug, and Cosmetic Act.
State requirements are preempted under the MDA
only to the extent that they are “different from, or in
addition to” the requirements imposed by federal
law. Thus, 360k(a) does not prevent a state from
providing a damages remedy for claims premised on
a violation of FDA regulations; the state duties in
such a case “parallel,” rather than add to, federal
requirements (Lohr, 518 U.S., at 495, 116 S.Ct. 2240).
The Riegel case reached the U.S. Supreme Court,
where the question to be decided was this: Does
Section 360k(a) of the Medical Device Amendments
to the Food, Drug, and Cosmetic Act preempt state
law claims seeking damages for injuries caused by
medical devices that received premarket approval
from the Food and Drug Administration?
In February 2008, the U.S. Supreme Court held
in this case that makers of medical devices are
immune from liability for personal injuries as long as
the FDA approved the device before it was mar-
keted and it meets the FDA’s specifications.
Source: Appeals Court Case: Riegel v. Medtronic, Inc., 451 F.3d
104 (2006); Supreme Court Case: Riegel v. Medtronic, Inc., 552
U.S. 312, 128 S.Ct. 999, 2008.

The extent of liability for manufacturers of medical devices and prod-

ucts may be changing, however, since a 2008 U.S. Supreme Court deci-
sion held that makers of medical devices such as implantable
defibrillators or breast implants are immune from liability for personal
injuries as long as the Food and Drug Administration (FDA) approved
the device before it was marketed and it meets the FDA’s specifications.
(See the previous Medtronic Inc. case.)
Drugs and medical devices are regulated under separate federal laws,
and an important issue in deciding drug injury cases is whether or not
the drug manufacturer made false or misleading statements to win FDA
approval. For example, the case Warner-Lambert Co. v. Kent, filed in 2006,
involved a group of Michigan residents who claimed injury after taking
Warner-Lambert’s Rezulin diabetes drug. The case was brought under a
Michigan tort reform law that said a drug company could be liable for
product injury if it had misrepresented the product to win FDA approval.
In this case, the question before the court was: Does a federal law pro-
hibiting fraudulent communications to government agencies preempt a

6 Chapter 1 | Introduction to Law and Ethics

 Table 1-1 Damage Awards Can Be Substantial
• Drug: Talcum Powder (2018) A jury in Missouri found that Johnson and Johnson should
pay 22 women a total of $4.69 billion for causing ovarian cancer. There are over
9,000 more lawsuits involving other talc-based products in state and federal courts
• Drug: Juxtapid (2017) Aegerion Pharmaceuticals will pay more than $35 million to
settle criminal and civil charges related to the cholesterol drug Juxtapid. The sales
staff continued to distribute samples as a general treatment for high cholesterol.
Juxtapid was approved to treat just those patients who have a rare genetic disease
call homozygous familial hypercholesterolemia.
• Drug: Epipen (2017) The Department of Justice brought charges against Mylan and
Mylan, makers of the Epipen for classifying the Epipen as a generic drug. Mylan
and Mylan did this to avoid paying Medicaid rebates. The company is paying
$465 million to settle allegations.

Source: www.drugwatch.com.

state law permitting plaintiffs to sue for faulty products that would not
have reached the market absent the fraud?
A federal appeals court eventually heard the case and ruled that the
Michigan “fraud on the FDA” law was preempted by a federal law that
allowed the FDA itself to punish misrepresentations. This decision was
appealed to the U.S. Supreme Court, and in a March 2008 decision, the
Supreme Court affirmed the appeals court, thus leaving the previous
state of the law unchanged and unclarified.
In this case, the people who sued the drug manufacturer were not
allowed to collect damages. But when courts find that drugs are misrep-
resented so that developers can win FDA approval, drug manufacturers
could be held legally responsible and forced to pay damages. Table 1-1
lists several settlements.

COURT CASE Patient Sues over Drug-Labeling Issue

In 2000, Diana Levine, a Vermont woman in her
fifties, sought medical help for migraine headaches.
As part of the treatment, the anti-nausea drug Phen-
ergan, made by Wyeth, was injected in her arm. An
artery was accidentally damaged during the injec-
tion, gangrene set in, and Levine’s right arm was
amputated. The amputation was devastating for
Levine, a professional musician who had released
16 albums, and she filed a personal injury action
against Wyeth in Vermont state court.
Levine asserted that Wyeth should have included
a warning label describing the possible arterial inju-
ries that could occur from negligent injection of the
drug. Wyeth argued that because the warning label
had been deemed acceptable by the FDA, a federal
agency, any Vermont state regulations making the
label insufficient were preempted by the federal
approval. The Superior Court of Vermont found in
favor of Levine and denied Wyeth’s motion for a
new trial. Levine was awarded $7 million in dam-
ages for the amputation of her arm. The Supreme
Court of Vermont affirmed this ruling on appeal,
holding that the FDA requirements merely provide
a floor, not a ceiling, for state regulation. Therefore,
states are free to create more stringent labeling
requirements than federal law provides.
The U.S. Supreme Court eventually heard the
case and issued a decision in March 2009. Wyeth
had argued that because the warning label had
been accepted by the FDA, any Vermont state
regulations making the label insufficient were
preempted by the federal approval. The U.S.
Supreme Court affirmed the Vermont Supreme
Court, holding that federal law did not preempt
Levine’s state law claim that Wyeth’s labeling of
Phenergan failed to warn of the dangers of intra-
venous administration.
Source: Wyeth v. Levine, 555 U.S. 555, 173 L.Ed.2d 51 (2009).

Chapter 1 | Introduction to Law and Ethics 7

 Federal preemption—a doctrine that can bar injured consumers from
suing in state court when the products that hurt them had met federal
standards—has become an important concern in product liability law.
One such case, Wyeth v. Levine, decided by the U.S. Supreme Court in
2009, will become precedent for future cases involving drug manufactur-
ers and consumers.

1.2 Comparing Aspects of

Law and Ethics
To understand the complexities of law and ethics, it is helpful to define
and compare a few basic terms. Table 1-2 summarizes the terms described
in the following sections.

law
Rule of conduct or action prescribed or
formally recognized as binding or
enforced by a controlling authority.
LAW
A law is defined as a rule of conduct or action prescribed or formally
recognized as binding or enforced by a controlling authority. Govern-
ments enact laws to keep society running smoothly and to control behav-
ior that could threaten public safety. Laws are considered the minimum
standard necessary to keep society functioning.

Table 1-2 Comparing Aspects of Law and Ethics

Law Ethics Moral Values

Definition Set of governing rules Principles, standards, Beliefs formed through the influence
guide to conduct of family, culture, and society

Main purpose To protect the public To elevate the standard To serve as a guide for personal
of competence ethical conduct

Standards Minimal—promotes smooth Builds values and ideals Serves as a basis for forming a
functioning of society personal code of ethics

Penalties of Civil or criminal liability. Upon Suspension or eviction Difficulty in getting along with
violation conviction: fine, imprisonment, from medical society others
revocation of license, or other penalty membership, as decided
as determined by courts by peers

Bioethics Etiquette Protocol

Definition Discipline relating to ethics Courtesy and manners Rules of etiquette applicable to
concerning biological research, one’s place of employment
especially as applied to medicine

Main purpose To allow scientific progress in a To enable one to get To enable one to get along with
manner that benefits society in all along with others others engaged in the same
possible ways profession

Standards Leads to the highest standards Leads to pleasant Promotes smooth functioning of
possible in applying research to interaction workplace routines
medical care

Penalties of Can include all those listed under Ostracism from chosen Disapproval from one’s professional
violation “Law,” “Ethics,” and “Etiquette”; as groups colleagues; possible loss of
current standards are applied and as business
new laws and ethical standards evolve
to govern medical research and
development, penalties may change

8 Chapter 1 | Introduction to Law and Ethics

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indeed, they are allowed to play upon nature’s green carpet, and the
privilege might well be extended without injury to the park.
PLAYS AND PLAYERS OF THE DAY.
By Morris Bacheller.
 FRANCIS WILSON.

Of the two great divisions of the drama, tragedy is today surprisingly

similar to what it was in the days of the ancient Greeks, while
comedy has in the mean time been the subject of a remarkable
evolution. That evolution has proceeded with especial rapidity within
recent years. To find the best and noblest exemplifications of tragedy
we have to go back two centuries to the master works of
Shakespeare. A few exceptional comedies there are of Sheridan’s or
Goldsmith’s, whose popularity has not diminished with the lapse of
time, though many generations have come and gone since they
were penned. But they may be counted upon the fingers of a single
hand, and only serve to emphasize the rarity of comedies that can
hold the boards for more than a few seasons.
The development of comedy, and especially of its more farcical
branches, is, indeed, the chief feature of recent dramatic history.
Attribute it to a reaction from the increased tension of modern
business life, or assign what sociological cause you will, the fact
remains that the general demand is for plays whose aim and object
is to amuse. It cannot be maintained that this tendency is restricted
to the less educated class of theater goers. On the contrary, it is at
houses that are especially frequented by people of wealth and
fashion that the supremacy of comedy is most assured. Melodrama
is still the most drawing card in the theaters patronized by the lower
million.
The advance of comedy has been multiform. Farces of greater
ingenuity and more sustained brilliance of workmanship are written
by the playwrights of today than by their forerunners. They are
interpreted upon the boards by more finished artists, and with a
stage setting that constantly becomes more complete and costly.
The comedian has a higher professional and even social standing
now than a generation ago, and he may secure a much greater
degree of renown, with its financial accompaniment of ample
earnings. And all this arises from the workings of the old law of
supply and demand. Every art that can contribute to the
embellishment of its presentation becomes the handmaid of comedy.
Music is pressed into its service, and the result is that characteristic
phase of latter day theatricals, the burletta.
There was a time, and not so very long ago, when the
predecessors of Francis Wilson and De Wolf Hopper were set down
as “low comedians,” and relegated to an artistic rank slightly superior
to that of the circus clown. Every one knows the contrast in the
position of the modern apostles of Momus. Attend the theaters, read
the newspapers, listen to the comment of the club rooms, and you
will speedily be convinced that they are the theatrical lions of the
hour, that among all the constellations of the dramatic firmament
their planet is in the ascendant. Nor is there anything in this state of
affairs to justify the pessimistic philosopher in an outcry against the
alleged decadence of the stage. The popular taste for comedy is
neither a degraded nor a perverted one, and the success of its
leading exponents has been won upon their merits.
The comic star rises to the zenith by an ascent as difficult and
laborious as that which leads to high rank in any other profession.
Ars est celare artem, and the apparently easy spontaneity with which
he develops the humor of a stage situation is the fruit of
conscientious study and persistent practice. There are no more
painstaking actors than the two typical burlesquers who as the
Regent of Siam and the Merry Monarch have during the recent
months reigned successively at the Broadway Theater, New York.
Francis Wilson, who recently succeeded his brother potentate, has
worked his way up from the lowest rounds of the theatrical ladder.
His first appearance was with Sandford’s minstrel company in a
sketch called “The Brians,” which was played in Philadelphia. Young
as he was—only a boy in his teens—Wilson made something of a
hit. This was enough to secure him plenty of remunerative
engagements with minstrel troupes, as a member of which he
traveled all over the country. He was ambitious, however, for work of
a higher order, and to secure a foothold upon the legitimate stage he
undertook a minor part in a company that appeared at the Chestnut
Street Theater, in Philadelphia. Here again his talents declined to
conceal themselves under a bushel. In the role of Lamp, a broken
down actor in “Wild Oats,” he carried with him upon the stage an old
foil, the last relic of better days, and from this seemingly unpromising
article he managed to extract so much quiet humor that the audience
was convulsed and the star of the piece entered a formal complaint
at this interference with his supremacy.
 DE WOLF HOPPER.

The following years saw the young actor steadily advancing in his
art, but experiencing various ups and downs of fortune, which wound
up with the “stranding” of his company, Mitchell’s Pleasure Party, in
San Francisco. Next he reappeared in Philadelphia—let us hope that
he was not obliged to reach it on foot—as a member of the McCaull
troupe, with which he played in his first comic opera, “The Queen’s
Lace Handkerchief.”
From this point his career has been one of uncheckered
prosperity. He was speedily recognized as a comic opera star of no
ordinary luster. In such standard parts as that of Cadeaux in Erminie
he achieved a reputation and a popularity that finally led him to
organize a company of his own, with which he has even eclipsed his
previous successes in “The Oolah” and “The Merry Monarch.”
De Wolf Hopper’s popularity has been won still more rapidly than
that of his brother comedian. He is the youngest of our successful
actors, as well as one of the most original in his methods, but he has
been upon the boards long enough to gain a thorough dramatic
training and a varied experience. It was his enthusiasm for private
theatricals, and his success in them, that led him upon the
professional stage—in spite of the fact that he had been educated
for the law. He was only twenty when, in 1880, he appeared as the
leading spirit of the Criterion Comedy Company, which had a fair
measure of prosperity, presenting such standard plays as “Caste”
and “Our Boys.” When it disbanded he was successively with
Edward Harrigan in “The Blackbird,” and at the Madison Square
Theater under the management of Daniel Frohman. At this latter
house, in the parts of Pittacus Green in “Hazel Kirke,” and Oliver
Hathaway in “May Blossom,” he gained the approbation of
metropolitan theater goers to a degree that was greatly enhanced
during the next five years, which he passed as a member of the
McCaull opera company. His last season with that organization was
marked by a success as Casimir in “Clover” that showed an advance
upon anything he had previously done. “Wang,” which was so
notably well received at the Broadway Theater during the past
summer, was his first independent venture.
 MODJESKA AS ROSALIND.

There are those who cherish the idea that the continued success
of actors like Messrs. Wilson and Hopper is largely due to the
prestige of their reputation and the indulgence shown by the public
toward established favorites. They tell us that it matters little what
may be the merits of the piece or its staging, the star is sure to have
a following sufficient to fill the box office with a golden stream. He
might almost as well dispense with the libretto altogether, they say,
for as soon as he opens his lips to speak the audience roars with
laughter.
 MODJESKA AS PORTIA.

So far as it denies the necessity for care and labor, thought and
skill, in the preparation and presentation of a farce, this theory is
fundamentally mistaken. It has again and again been proved that no
names upon the playbill, however eminent, can make a poor play
successful. The theater going public may not be infallible, but it is too
discriminating to accept an unpalatable article because it bears a title
of repute. The later popularity of “The Oolah” has obliterated
recollection of the fact that on its first night its reception was not
enthusiastic. The critics thought and said that Wilson had made a
mistake. But the comedian set himself at work to improve the piece,
cutting here, adding there, and interlining and changing until in a
hundred small but yet not unimportant points it was a different and a
better play. This is merely a single example of those expenditures of
thought and care that escape the hasty critic, and many similar
incidents might be cited. For instance, the remarkably flexible voice
of which De Wolf Hopper makes such effective use has received
almost as careful training as a prima donna’s.

MADAME HELENA MODJESKA.

It would hardly be fair to the theatrical situation of the day to

picture it only as a regime of farce comedy. The burlesque is indeed
the most characteristic phase of the fin de siècle dramatic
development, but it is not by any means sole monarch of the stage.
The avenue that leads to the applause of the world of culture is still
open to interpreters of the art that can call forth tears as well as
laughter.
 MODJESKA AS JULIE DE MORTIMER.

No better proof of this can be given than the marked favor with
which Madame Modjeska has been everywhere received during her
comparatively brief career upon the American stage. It is true that
she had already gained a wide reputation in Europe when she
abandoned her profession and came to the New World with her
husband, Count Bozenta. They had in view the establishment of a
colony of their Polish fellow countrymen in Southern California. The
scheme was probably somewhat Utopian. At any rate it was
abandoned, and the countess, under her earlier name of Modjeska,
fitted herself for the English speaking stage.
San Francisco was the scene of her debut, and “Adrienne
Lecouvreur” the play. She has since acted in all the leading cities of
America, besides making two visits to London. Her repertory
includes a wide range of pieces of the highest intellectual order. As a
delineator of Shaksperian heroines she is unsurpassed, and her
appearances with Edwin Booth in the great dramatic classics have
been among the most notable events of recent seasons. The
intensity of her Juliet, the grace and dignity of her Portia, the pathos
of her Ophelia, and the Arcadian naïveté of her Rosalind have borne
witness to her rare endowment of histrionic talent. Among other
plays in which she has taken the leading part are “Camille,” “Mary
Stuart,” “Juanna,” “Frou-Frou,” “Odette,” and “Richelieu.” In the last
named, which she played in conjunction with Booth, she scored one
of her most notable successes as Julie de Mortimer.
Long as she has been upon the stage of two continents, Madame
Modjeska’s impersonations of Juliet or Beatrice have all the fresh
charm of youth. With exceptional skill in the portrayal of strong
emotion she combines a lightness of touch and a graceful refinement
that are peculiarly characteristic. The fact that she has never
succeeded in removing from her English speech the last faint trace
of a foreign accent, is to many of her parts rather an added interest
than a blemish.
MODJESKA AS OPHELIA.
 A DAUGHTER OF THE DESERT.
By Thomas Winthrop Hall.
A tired horse ambled slowly up to the solitary adobe house, or rather
hut, that meets the sight of the dusty traveler who journeys between
a certain station on the Southern Pacific railroad and the famous
Indian station at San Carlos. One hundred miles of dusty road that
wound over a naked, sandy plain sparsely dotted with hideous
cactus, a stretch of the desert on either side, and on the horizon
walls of gray mountains treeless as the desert itself—these were the
uncheerful surroundings of McCoy’s ranch. Worse than a prison,
more remote than a Siberian mine, lonelier than the grave, here two
human souls, father and daughter, had lived for more than twelve
years, and during that twelve years they had been away from that
adobe oasis, the girl at least, not one single day, and the father
never longer than it would take him to ride over to the mountains for
a short hunt. It was a watering station on the stage road. An artesian
well had been sunk there in the early days. Like every other work of
man it had to have its human slaves, and from the day the last
adobe had been laid these slaves had been McCoy and his daughter
Sis. The latter was a child of six when she was lifted out of the ox
wagon at the door of the house. She was now a girl of eighteen.
What a life hers had been! One unvarying monotony of cooking
and of washing, of chopping wood and feeding the horses and of
looking anxiously one day up the road for the stage to come down
and the next day down the road for the stage to come up so that she
might have dinner (a pretentious name for a meal that consisted
always of bacon, eggs, coffee and hot bread) prepared for the stage
driver and what unfortunate companions in misery he might be
transporting to or from the agency. These, alas, gulped down their
food as hastily as possible and hastened away at once, only too
anxious to get the thing over with. That was all she saw of them.
Once in a while she caught sight of a muffled figure in an ambulance
that stopped for water for its thirsty mules and knew that it was a
woman because it did not get out and swear at the heat and dust, an
officer’s wife probably—ah! how she longed to speak to her. The
rough freighters often camped there. This was the sum total of the
girl’s experience with beings of her kind save one.
That was the man who sat carelessly erect on the tired horse that
ambled up to the adobe house. Lieutenant Jack Harding was he, of
Uncle Sam’s —th regiment of cavalry. And what a man he was, to be
sure! Handsome as a Greek god, stalwart as a Norse warrior,
reckless, brave, accomplished, as gentle as a girl until aroused, then
as wild and defiant as an Apache, he was a Bayard in the eyes of
most women and a demi-god in the estimation of poor Sis. He had
stopped over night at the watering station six times in four years. Sis
dreamed of his coming months before he appeared, and dreamed,
too, of his going months after he went. She worshiped him from the
moment she first saw him. That was all. She had read many books,
for her father had taught her to read, and Jack Harding served in turn
as the hero of each novel she became possessed of, and, of course,
(O dear little trait of woman’s nature) she as the heroine.
Lieutenant Jack jumped from his horse as lightly as though a ride
of fifty miles were a mere bagatelle, and walked smilingly up to the
door. Just as he reached it Sis came bashfully to the doorway.
“Hello, Sis,” said the lieutenant cheerfully.
“O——,” replied Sis. She never could talk to him.
“Dad home?”
“Nope.”
“Hunting?”
“Yep.”
“Well, I’ve come to make my party call for the last time I was here.
Got anything to eat?”
“Only bacon and eggs.”
 “Good enough for a prince—if the prince is as hungry as I am. All
right, get them ready. I’ll go and take care of Noche. Come, Noche—
want some water, old girl?” He led off the horse, and Sis turned from
the doorway to the kitchen. As she did so she stepped just for one
moment into a little room that, were she a lady, she would call her
boudoir, though it was but little larger than a good sized piano box,
and looked searchingly at her own face in a bit of broken looking
glass. What did she see? No thing of beauty, I assure you. This girl
had not been dowered by God with that divine gift that makes every
woman who possesses it a queen. Far from it. But so ignorant of the
world was she, so much an utter stranger to the appearance of
others of her sex, that she did not know that she was remarkably
homely. Freckle faced, pug nosed, red haired, rough and worn with
work, she was in appearance positively ugly. She had often asked
her father whether or not she was good looking, and he had
invariably replied “Yes.” But he always said it in such a way that poor
Sis began at last to suspect that she was not really as beautiful as
the heroines of Scott’s novels (she knew the descriptions of them by
heart.) Still it might be, and she hoped—a thing that a woman does
almost as easily as she forgives.
The supper was eaten in the usual wondering silence on her part
and the running fire of nonsense on the part of the lieutenant. He
accused her of being in love with “Peg-leg,” the mule driver, and was
cheerfully unconscious of the fact that his words tortured her heart
until she almost broke down and cried before him. He told her all the
news of the post and the latest jokes on the officers in an endeavor
—a vain one—to make her laugh. People who have lived ten years
in a desert do not laugh. At last it was over, and she cleared away
and washed the dishes. He smoked his pipe the while, wondering
how in the world she came to be so homely, wondering how she
managed to exist in such a place, and coming to a mental conclusion
as to how long he himself could stand such a life before committing
suicide. Then he went out and took a stroll on the sandy desert. Old
McCoy was not in sight, and though it was moonlight it was hardly
probable that he would return that night. He congratulated himself,
too, that Sis had not been brought up to the ideas of good society,
else he would have to make his bed in the hay that night and leave
the house, double barred and locked, to Sis. He even thoughtlessly
muttered to himself, “What a wonderful protection a homely face is!”
Then he went back to the kitchen to talk to Sis a while before going
to bed. As he entered a sight met his astonished eyes that almost
made him burst with laughter. It was nothing more nor less than Sis
arrayed in a gown that would have been an absurdity in caricature.
Green satin trimmed with red ribbons and a red sash, formless,
shapeless, it was her pitiful attempt to appear beautiful. Her great
hands hung from the sleeves like baskets from the branches of an
apple tree. Her red face and hair looked redder still by the contrast
with the gaudy colors of the dress, and she stood in the habitual
slouching attitude so characteristic of her. Yet there was something
in her gray eyes that told him it was a supreme moment in her life—
the wearing of this dress—and he did not laugh. Indeed, for a
moment he almost felt sad. He tried to sit down as unconcernedly as
possible, and busied himself filling his pipe. He did not dare to look
at her. He hoped she would do something or say something, but she
did not. She stood there silent, intense, looking at him so earnestly
that it was but too manifest that she was trying to read his thoughts.
He must do something.
“Where did you get that dress, Sis?” he said as quietly as he
could.
“Dad gave it to me,” she answered. “He always promised me a
satin dress, and so last Christmas he sent and got the satin. I made
it. This is the first time I have worn it before any one.”
She spoke as though the words were choking her. She seemed to
be nerving herself for something unusual. She was.
“Tell me,” she cried, almost fiercely, “tell me honestly, am I
beautiful?”
He tried not to do it. He felt like a cur, a second afterwards, for
having done it. But he could not help it, do what he could to control
himself. He laughed aloud.
“O don’t—don’t—don’t——” she almost screamed. Then she fell
on the floor in a green and red heap and wept. Jack had seen
women weep before (a number of them had wept at different times
when he had come to say “good by”), but never before had he seen
such a torrent of tears as this. There was no stemming it, though he
tried very hard. It seemed an age before it ceased, and then it
seemed another age that she sat there motionless with her face in
her hands as though she was trying to hide it. He felt horribly
nervous. It took him sixteen matches, as he afterwards said, to
smoke one pipe. Finally she broke the silence. Her voice was calm
enough as she asked:
“What is a beautiful woman like?”
He did not answer in words. It was just a little hard to speak at all.
He unbuttoned his blouse and took from the inside pocket a
photograph and handed it to her. She held it fiercely in her two great
rough hands and gazed at it steadily for a long time. Poor woman,
she learned what beauty was, and she learned of the love of this
man whom she worshiped. Then she got up, handed back the
photograph to its owner and walked silently and slowly from the
room.
It was hard for Jack Harding to sleep that night. He got into a fitful
slumber along towards morning, and he had not been sleeping for an
hour when he found himself standing awake in the middle of the
room feeling for his revolver in the gray light of the early dawn.
“Nothing but a shot could wake me like that,” he said to himself,
and hastily pulling on his clothes and taking his revolver in his hand
he went through the house. The fire had been built and breakfast,
already cooked, was waiting for him. “I guess Sis didn’t sleep much
either,” he thought. He knocked at her door but received no answer.
“Milking the cow, I guess,” he thought, but there was beginning to be
a horrible dread in his heart. He ran hastily out of the house, and
there—there under his own window lay Sis, again a green and red
heap, but there was red on the dress now that was not ribbon. She
had shot herself in the breast. He ran to her and picked her up. He
carried her into the house and swore at himself for never having had
the energy to study a little surgery in all the long years of his army
idleness. Presently she revived a little and he heard her murmur
faintly: “Tell dad good by—tell him I can’t help him any longer.”
“Oh, Sis!” he pleaded, “why did you do this?”
“Because you laughed at me,” she answered.
“But I did not mean it. You are beautiful, Sis, indeed you are very
beautiful.”
“Oh no, I’m not,” she said. “I know what beauty is now.”
He could say nothing for a time. He hardly knew why he said what
he did when he spoke.
“Sis,” he asked her gently, “tell me, why did you want to be
beautiful?”
“Because—because I loved you,” she answered slowly and with a
sob.
And when her father got home that afternoon and walked gayly
into the little adobe house, he found them still together, one dead—
one weeping.
 A BRIEF BURLESQUE.
As Performed Upon the Modern Stage.

She—You love me?

He— Aye, I do indeed,

How can I prove it?

She— Is there need?

He—Nay, not for some, but you are cold—

Ah, would our life were that of old
That I might prove by feat of arms
My wish to shield you from all harms—
As knight of thine I could not fail!

She—There’s safety in a coat of mail.

He—True, so there is; but take the case

Of Orpheus—give to me his place.
For Orpheus left this world above,
At Pluto’s throne he showed his love—

She—But that’s mythology, you know—

He—To Pluto I would go to show—

She—Ah, thanks; but is it just to trace

Comparisons between his Grace
Of the Inferno and mon père?
You’d hardly find the latter there,
But in that room with door ajar
You’ll see him deep in his cigar;
Which after dinner smoke, I find,