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5530: Chapter 10


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  • 1. Chapter 10 Allied ProfessionalsLegal Responsibilities 2
  • 2. Dying at the Hospital’s Door• Communications Breakdown• A Child’s Death• A Lawsuit Occurs• A Court Awards Damages• But What Has Changed?• Lessons Learned – Triage the Patient • Don’t make hasty judgments about a patient who arrives at the Emergency Department Entrance 3
  • 3. Chiropractor – I• Standard of care required – degree of care, judgment, & skill exercised by other reasonable chiropractors under like or similar circumstances. 4
  • 4. Chiropractor Case: Immoral Conduct• Conspiracy to manufacture & distribute misbranded substance.• Introduced misbranded & adulterated drugs into interstate commerce with intent to defraud.• District & appellate courts found chiropractor’s conduct immoral.• Chiropractor’s denial now, after taking advantage of a plea bargain, that he committed any of the acts he admitted to in the U.S. district court is disturbing & not consistent with integrity expected by persons engaged in a professional occupation.• See text case: Poor v. State 5
  • 5. Dentistry Cases – I• Drill Bit Left in Tooth• Failure to Refer• Lack of Consent – Removal of teeth without consent• Failure to prescribe antibiotics – Risk of not prescribing an antibiotic is that bacteria can flow through the bloodstream to the heart. 6
  • 6. Dentistry Cases– II• Infection Control – Failure to Wear Protective Gloves• Practicing Outside Scope of Competecy – Dentist performed several elective cosmetic procedures including a face lift, eyelid revision, and facial laser resurfacing.• Dental Hygienist Administers Nitrous Oxide• Failure to Supervise Dental Assistant 7
  • 7. Emergency Department• Objectives of Emergency Care – treatment must begin as rapidly as possible – function is to be maintained or restored – scarring & deformity are to be minimized – treatment regardless of ability to pay. 8
  • 8. No Duty to Patient Who Left ED UntreatedIn a wrongful death medical malpractice action alleging negligence, the trial court properly granted summary judgment because under Ohio law, an emergency room nurse had no duty to interfere with an individual who left the ED without telling anyone and who refused treatment. See text case: Griffith v. University Hospitals of Cleveland 9
  • 9. Failure to AdmitPhysician was found negligent in failing to hospitalize the patient or failing to inform her of the serious nature of her illness. The trial court found that had the patient been hospitalized on her first visit, her chances of survival would have been increased.See text case: Roy v. Gupta 10
  • 10. Documentation Sparse & ContradictoryED physician failed to evaluate the patient & to initiate care within first few minutes of patients entry into the emergency facility. The emergency physician had an obligation to determine who was waiting for physician care & how critical the need was for that care.See text case: Fenney v. New England Medical Ctr. 11
  • 11. EMTALA – IIn 1986, Congress passed the Emergency Medical Treatment and Active Labor Act (EMTALA) that forbids Medicare- participating hospitals from dumping patients out of EDs. 12
  • 12. EMTALA 42 U.S.C.A. § 1395dd(a) (1992)“in the case of a hospital that has a hospitalemergency department, if any individual (whether ornot eligible for benefits under this subchapter) comesto the emergency department and a request is madeon the individuals behalf for examination ortreatment for a medical condition, the hospital mustprovide for an appropriate medical screeningexamination within the capability of the hospitalemergency department, including ancillary servicesroutinely available to the emergency department, todetermine whether or not an emergency medicalcondition . . . exists.” 13
  • 13. Emergency Medical Condition(A) a medical condition manifesting itself byacute symptoms of sufficient severity(including severe pain) such that the absenceof immediate medical attention couldreasonably be expected to result in (i) placingthe health of the individual (or, with respect toa pregnant woman, the health of the woman orher unborn child) in serious jeopardy . . . . 14
  • 14. EMTALA Text Cases– Limited to Actions Against Hospital– Patient Screening Appropriate– Stabilizing the patient– Discharge Found Appropriate– Screening and Discharge Appropriate– Transfer Prior to Stabilizing Patient– Inappropriate Transfer 15
  • 15. Wrong Record: Fatal Mistake – I• Terry was taken to the hospital after being injured in an automobile accident.• Upon ordering discharge, the ED physician had not realized that he had made a fatal mistake. The physician looked at the wrong chart in determining Terrys status, thus discharging Terry.• Terry slumped died at home in his fathers arms as his head slumped forward. – See text case: Trahan v. McManus • Who is responsible for Terry’s death? 16
  • 16. Wrong Record: Fatal Mistake – IIThe ED physician by his own admissions stated that he acted negligently when he discharged Terry and that his actions led to Terrys death.See text case: Trahan v. McManus 17
  • 17. Duty to Contact On-Call Physician• Hospitals are expected to notify specialty on-call physicians when their particular skills are required in the ED. A physician who is on call & fails to respond to a request to attend a patient can be liable for injuries suffered by the patient.• Failure to Respond to Call• Timely Response Required• Notice of Inability to Respond to Call 18
  • 18. Telephone Medicine Costly – I Futch v. AttwoodLaurens was taken to the hospital ED. Hospital personnel contacted the physician by phone. He returned the call & prescribed a Phenergan injection. He did not go to the hospital & had not been given Laurens vital signs when he suggested such an injection, & further failed to order any blood or urine tests. Hospital records revealed that Lauren’s glucose level was 507 at the time of admission. Laurens went into respiratory failure & eventually died.Was the physician liable for practicing telephone medicine? 19
  • 19. Yes!The trial court allocated $98,000 for the conscious pain & suffering of Lauren. The defendant complained that the award of $98,000 was excessive. On appeal, the appellate court could not find that the trial court had erred in concluding what sum was fair to both parties. 20
  • 20. Preventing ED Lawsuits – I• Treat each patient courteously and promptly• Treat all patients regardless of ability to pay• Triage and treat seriously ill patients first• Communicate with the patient and the patient’s family to ensure that a complete and accurate picture of the patient’s symptoms and complaints are obtained• Provide an appropriate examination of the patient based on the presenting complaint/s and symptoms (failure to do this may be the single most common and sometimes fatal mistake in emergency departments) 21
  • 21. Preventing ED Lawsuits – II• Require consultations when determined necessary• Establish on-call lists for specialists• Ensure all caregivers are effectively communicating with one another• Provide continuing education programs for all staff members• Obtain patient consent for procedures 22
  • 22. Preventing ED Lawsuits – III• Institute a preventive maintenance program for emergency department equipment• Determine which diagnoses can be safely addressed within the organization• Make appropriate arrangements, when required, for transfer 23
  • 23. Preventing ED Lawsuits – IVHospitals need to determine what types of patients & levels of care they can safely address. If there are several hospitals in a community, they must learn to communicate with one another & include emergency medical services personnel in addressing transport & care issues. 24
  • 24. The Right Hospital? - IIf Hospital A has no neurologist, neurosurgeon, or stroke team & Hospital B, 1-mile away has all of that plus a Level I trauma center, would it be fair to say that a suspected stroke victim should be transported to Hospital B? 25
  • 25. The Right Hospital? – II Yes!• Its is not just any hospital, it is the right hospital that saves lives• Taking the patient to hospital A raises both ethical and legal issues• Under what circumstances would hospital B be the first hospital of choice? 26
  • 26. The Right Hospital? - IIIWhen there is no other hospital within a reasonable distance to stabilize the patient. 27
  • 27. EDs Vital to Public SafetyThe hospital itself has come to be perceived as the provider of medical services. According to this view, patients come to the hospital to be cured, and the doctors who practice there are the hospitals instrumentalities, regardless of the nature of the private arrangements between the hospital and the physician. Whether or not this perception is accurate seemingly matters little when weighed against the momentum of changing public perception and attendant public policy. [Martin C. McWilliams, Jr. & Hamilton E. Russell, III, Hospital Liability for Torts of Independent Contractor Physicians, 47 S.C. L. REV. 431, 473 (1996).] 28
  • 28. State RegulationsLegislation in many states imposes a duty on hospitals to provide emergency care. The statutes implicitly, and sometimes explicitly, require hospitals to provide some degree of emergency service. 29
  • 29. LaboratoryGeorgetown U. Hospital Shuts Lab After Problems With Cancer TestsGeorgetown University Hospital has shut down a lab that performs genetic analysis for breast cancer patients and has had 249 women’s tissue samples independently retested while federal officials investigate procedures at the lab. The Washington Post, Lena H. Sun, August 6, 2010 30
  • 30. Laboratory Services - IAn organizations lab provides data that are vital to a patients treatment. The lab monitors therapeutic ranges, measures blood levels for toxicity, places & monitors instrumentation on patient units, provides education for the nursing staff (e.g., glucose monitoring), provides valuable data utilized in research studies, provides data on the most effective and economical antibiotic for treating patients, serves in a consultation role, provides valuable data as to the nutritional needs of patients . . . . 31
  • 31. Laboratory Services – II• Failure to follow transfusion protocol• Mismatched blood• Refusal to work with certain specimens• Lost Chance of Survival – Pap Smear – Court determined evidence relating to negligence claims pertaining to Pap tests taken more than 2 years before filing the action were admissible because the patient had a continuing relationship with the clinical laboratory as a result of her physician submitting her Pap tests to the laboratory over a period of time. See Text Case: Sander v. Geib, Elston, Frost Prof’l Ass’n32
  • 32. Medical Assistant• An unlicensed person who provides administrative, clerical, and/or technical support to a licensed practitioner.• Employment of medical assistants is expected to grow much faster than the average for all occupations.• Those in large practices tend to specialize in a particular area, under supervision. 33
  • 33. Medical Imaging• Negligence in medical imaging tests & therapies often involve a failure to protect patients from falls & the negligent handling of equipment.• X-ray Cassette Falls on Patient’s Head – See text case: Schopp v. Our Lady of the Lake Hospital• Poor Communications 34
  • 34. Nutritional Services• Need to provide nutrition• Failure to do so can result in a lawsuit• Nursing facility patient’s highly vulnerable – Lambert v. Beverly Enterprises • Patient suffered malnutrition • Motion to dismiss case denied 35
  • 35. Paramedic• Protected by Good Samaritan Statutes• Inability to Diagnose the Extent of Injury• Lidocaine Administered 44 Times Normal Dosage• Failure to Transport Patient• Paramedic License Denied 36
  • 36. Pharmacy• Immense variety & complexity of medications• Impossible for nurses or doctors to keep up with the information required for safe medication use• Pharmacist has become an essential resource in modern hospital practice 37
  • 37. Government Control of Drugs• Federal Controls – Controlled Substance Act – Federal, Food, Drug & Cosmetic Act• State Regulations• Distribution, Dispensing, & Administration• Storage of drugs• Drug substitution• Hospital formulary 38
  • 38. Mediations: Helpful Tips - I• Be sure handwriting is legible; print if necessary.• For clarity, do not use felt-tip pens.• Abbreviations should be used per hospital policy.• Do not write ambiguous orders.• Always add a zero prior to a decimal.• Hold orders should be accompanied by a time frame. 39
  • 39. Mediations: Helpful Tips - II• Know about the meds that you are prescribing• Be sure medications have been properly deluded before administering• Be sure that medications are properly administered at the proper time in the prescribed dosage by the correct route ( e.g., IV, intramuscular, oral) 40
  • 40. Expanding Role of Pharmacists - I• Duty to monitor patient’s medications – Computer systems monitor for: • Drug-drug interactions • Drug-food interactions• Warning Patients - Potential for Overdose• Refusal to Honor Questionable Prescription 41
  • 41. Expanding Role of Pharmacists - II• Limited Duty to Warn – Pharmacists cannot possibly warn caregivers & patients of every potential danger of a drug• Refusal to Fill a Prescription• Failure to Consult with the Patient’s Physician 42
  • 42. Common Medication Errors Prescription Errors• wrong patient• wrong drug• inappropriate drug ordered due to: known drug allergies, drug-drug and food-drug interactions• wrong dose• wrong route• wrong frequency• transcription errors (due to illegible handwriting & improper use of abbreviations)• inadequate review of medication for appropriateness 43
  • 43. Common Medication Errors Dispensing Errors• Improper preparation of medication• Failure to properly formulate medications• Dispensing expired medications• Mislabeling containers• Wrong patient• Wrong dose• Wrong route• Misinterpretation of physician order 44
  • 44. Common Medication Errors Documentation Errors• Transcription errors (often due to illegible handwriting & improper use of abbreviations)• Inaccurate transcription to medication administration record (MAR)• Charted but not administered• Administered but not documented on the MAR• Discontinued order not noted on the MAR• Medication wasted and not recorded 45
  • 45. Physical Therapy Incorrectly Interpreting Physician’s Orders - I• Plaintiff alleged that defendant failed to exercise degree of care & skill ordinarily exercised by physical therapists, failed to heed his protests that he could not perform the physical therapy treatments she was supervising, & failed to stop performing treatments after he began to complain he was in pain.• Plaintiff’s expert testified defendant deviated from standard of care by introducing a type of exercise not prescribed by the physician. – Court’s Finding? – See Text Case: Pontiff, in Pontiff v. Pecot & Assoc. 46
  • 46. Incorrectly Interpreting Physician’s Orders - II• For the Plaintiff! – The appeals court found that the trial court was correct in its determination that the plaintiff presented sufficient evidence to show that this duty was breached & that therapist’s care fell below the standard of other physical therapists. 47
  • 47. Termination of Contracted Services - IHospital claimed that its attempt to establish a hospital-based physical therapy program would have been disrupted if the independent therapist had been permitted to continue treating patients.What was the court’s decision? • See Text case: Armintor v. Community Hospital of Brazosport 48
  • 48. Termination of Contracted Services - II• For the Hospital! – Exclusion of a therapist is an administrative matter within the boards discretion.a 49
  • 49. NEGLECTPhysical therapist had been charged with resident neglect for refusing to allow an 82-year-old nursing facility resident to go to the bathroom before starting his therapy treatment session. See text case: Zucker v. Axelrod 50
  • 50. Physical Therapist License RevokedPhysical therapist was found to have been properly revoked in several other states. See text case: Girgis v. Board of Physical Therapy 51
  • 51. Physician’s Assistant• PAs as physician extenders• Scope of practice defined by each state• PAs responsible for own negligent acts• Respodeat Superior: the employer of a PA can also be liable for the PA’s negligent acts 52
  • 52. Podiatrist• The legal concerns of podiatrists, similar to those of surgeons, include misdiagnosis and negligent surgery.• Podiatrist in Strauss v. Biggs was found to have failed to meet the standard of care required of a podiatrist & that failure resulted in injury to the patient. The podiatrist, by his own admission, stated that his initial incision in the patients foot had been misplaced.• Podiatrist acted improperly by failing to refer the patient, stop the procedure after the first incision, inform the patient of possible nerve injury . . .. 53
  • 53. Respiratory Therapist• Failure to Remove Endotracheal Tube• Multiple Use of Same Syringe• Restocking the Code Cart 54
  • 54. SecurityHospitals have a duty to implement & maintain reasonable measures to protect patients from the criminal acts of third parties. However, if an attack and injury to a patient is not foreseeable, the hospital’s actions cannot be the proximate cause of the patient’s injuries. 55
  • 55. Assault in the EDPatient in was sitting in the ED waiting room when a teenage boy, D.G., arrived with his mother. After they had all sat in the waiting room for a short period of time, D.G. walked up to Lane & began to hit her on her right arm & shoulder. Lanes son-in-law, who had accompanied her to the emergency room, jumped to her aid & struck D.G., knocking him to the floor. The attack stopped and nothing further happened. Lane suffered some injuries as a result of the attack. – Is the hospital liable for Lane’s injuries? 56
  • 56. No!Evidence in this case depicts a situation in which the attack upon Lane by D.G. was unexpected & no other evidence was designated to the trial court from which it could have concluded that the specific actions of D.G. on the day in question were foreseeable. The court was bound to conclude that the attack & injury was not foreseeable, that the centers actions were not the proximate cause of Lanes injuries & that the center is entitled to judgment as a matter of law. 57
  • 57. Failure to Provide Adequate SecurityA hospital can be found liable for failing to provide adequate security. – see text case: Hanewinckel v. St. Paul’s Property & Liab. 58
  • 58. Sexual Improprieties• Dentist• Nurse• Osteopath• Physician• Psychiatrist 59
  • 59. Surgery• Improper positioning of arm• Sciatic nerve injury 60
  • 60. Certification of Healthcare Professionals• Recognition by a governmental or professional association that an individuals expertise meets the standards of that group.• Some professional groups establish their own minimum standards for certification in those professions that are not licensed by a particular state.• Certification by an association or group is a self-regulation credentialing process. 61
  • 61. Licensing Healthcare Professionals• Process by which a competent authority grants permission to a qualified individual to perform certain specified activities that would be illegal without a license.• Licensure refers to the process by which licensing boards, agencies, or departments of the several states grant to individuals who meet certain predetermined standards legal right to practice in a health care profession & to use a specified health care practitioners title. 62
  • 62. Licensing Healthcare Professionals, contCommonly stated objectives of licensing laws are to limit & control admission to the different health care occupations & to protect the public from unqualified practitioners by promulgating & enforcing standards of practice within the professions. 63
  • 63. Suspension & Revocation of LicenseLicensing boards have authority to suspend or revoke the license of a health care professional found to have violated specified norms of conduct. Such violations may include: – procurement of a license by fraud – unprofessional, dishonorable, immoral, or illegal conduct – performance of specific actions prohibited by statute; and malpractice. 64
  • 64. Helpful Advice for Caregivers• Abide by the ethical code of one’s profession.• Do not criticize the professional skills of others.• Maintain complete and adequate medical records.• Provide each patient with medical care comparable with national standards.• Seek the aid of professional medical consultants when indicated.• Obtain informed consent for all procedures 65
  • 65. Helpful Advice for Caregivers, con’t• Inform the patient of the risks, benefits, & alternatives to proposed procedures.• Do not indiscriminately prescribe medications or diagnostic tests.• Practice the specialty in which you have been trained.• Participate in continuing education programs.• Keep patient information confidential.• Check equipment & monitor it for safe use. 66
  • 66. Helpful Advice for Caregivers, con’t• When terminating a professional relationship with a patient, provide adequate written notice to the patient.• Authenticate all telephone orders.• Obtain a qualified substitute when you will be absent from your practice.• Investigate patient incidents promptly.• Be a good listener, & allow each patient sufficient time to express fears and anxieties.• Develop & implement an interdisciplinary plan of care for each patient. 67
  • 67. Helpful Advice for Caregivers, con’t• Safely administer patient medications.• Closely monitor each patient’s response to treatment.• Provide education & teaching to patients.• Foster a sense of trust & feeling of significance.• Communicate with the patient & other caregivers.• Provide cost-effective care without sacrificing quality. 68
  • 68. REVIEW QUESTIONS1. What was the reasoning for enacting theEmergency Medical Treatment and Active LaborAct?2. Comment on the statement: A sexual improprietycommitted by a health care practitioner should behandled in the institution, not in court.3. Should medical advice be dispensed on thetelephone? Explain your opinion. 69
  • 69. REVIEW QUESTIONS, cont4. Discuss why the prescribing, control,administration, and monitoring of medications hasbecome a major area of legal concern for health careprofessionals.5. Describe the difference between the certificationand licensing of a health care professional. 70