Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen

Medical Law and Ethics, Fourth Edition
Bonnie F. Fremgen
Copyright ©2012 by Pearson Education, Inc.
Upper Saddle River, New Jersey 07458
All rights reserved.
Medical Law and Ethics
Chapter 2
The Legal System
Bonnie F. Fremgen
Two Fundamental Processes
• Federal System: power divided between

central (federal) government and smaller
(state) governments
• Checks and Balances: Designed so that
no one single branch of government
could control the entire government. Also
means each branch of government is
scrutinized by the other branches
Bonnie F. Fremgen
The Legal System
U.S. Constitution
• Legislative Branch: lawmaking body
(Senate and House of Representatives);
originates legislation
• Executive Branch: President, cabinet,
and advisors; enforces the law

• Judicial Branch: judges and federal
courts; interprets the law
Bonnie F. Fremgen
Figure 2.1
The Branches of the U. S. Government
Bonnie F. Fremgen
Sources of Law
• Constitutional Law: addresses
relationship between individuals and their
government

• Statutory and Regulatory Law: passed
by legislative bodies, either Congress or
state legislature
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Sources of Law
• Common or Case Law: established
from court decisions. Based on
precedent. Old case decisions still
influence today’s healthcare
professionals
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Classification of Laws
• Public
– Criminal
– Administrative
– Constitutional
– International
• Private or Civil
– Tort
– Contract
– Property
– Inheritance
– Family
– Corporate

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Civil (Private) Law
• Concerns relationships between
individuals or between individuals,
businesses, and government
• Awards monetary damages
• Includes tort law and contract law
Bonnie F. Fremgen
Tort Law
• Civil injury, or wrongful act
• Committed against another person or
property

• Results in harm
• Compensated by monetary damages
• Can be intentional or unintentional
Bonnie F. Fremgen
Intentional Torts
• Assault: threat of bodily harm
• Battery: actual bodily harm
• False imprisonment: violation of one’s
liberty
• Defamation of character (slander/libel)
• Fraud (i.e., embezzlement): deceitful
practice
• Invasion of privacy: break in
confidentiality

Bonnie F. Fremgen
Unintentional Tort
• Negligence: an unintentional action that
occurs when a person either performs or
fails to perform an action that a
“reasonable person” would or would not
have committed in a similar situation
• Involves performing carelessly or failing
to perform a task
• Not exercising ordinary standard of care
Bonnie F. Fremgen

Contract Law
• Addresses breach or neglect of legally
binding agreement between two parties
• Contract: voluntary agreement between
two parties with intent of benefiting each
other
– Something of value (consideration) is part of
agreement
– Both parties must be competent
Bonnie F. Fremgen
Contracts
• Expressed Contract: agreement
entered into orally or in writing; all
components of contract must be clearly

stated
• Implied Contract: agreement shown
through inference by signs, inaction, or
silence
Bonnie F. Fremgen
Contracts
• Abandonment: withdrawing medical
care from a patient without providing
sufficient notice
• Breach of Contract: either party fails to
comply with terms of the agreement
• Abandonment: withdrawing medical
care from a patient without providing
sufficient notice (in writing)

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Class Action Lawsuit
• Filed by one or more people on behalf of
a larger group of people
• The members of the group are all
affected by the same situation
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Public/Criminal Law
• Protects public from harmful acts of
others
• Defines socially intolerable conduct that

is punishable by law
• Government prosecutes person or
institute that violates law
• Penalties are fine, imprisonment, or both
• May be felony or misdemeanor
Bonnie F. Fremgen
Administrative Law
• Regulations set by government
agencies:
• Licensing and supervision of prescribing
controlled substances
• Health department regulations
• Regulations against homicide, infanticide,
euthanasia, assault and battery
• Regulations against fraud

Bonnie F. Fremgen
The Court System
• Two court systems in the United States
– State
– Federal
• Each has specific responsibilities
– Exclusive
– Concurrent (both courts have power to hear
the case)
• Depends on type of offense committed
Bonnie F. Fremgen

Figure 2.2
Separation of Powers in the Federal Legal System
Bonnie F. Fremgen
Types of Courts
• Federal
– District (municipal)
– Court of appeals (circuit court)
– U.S. Supreme Court
• State
– District (municipal trial)
– State court of appeals
– State supreme court

Bonnie F. Fremgen
Figure 2.3
Federal Court Structure
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Figure 2.4
Components of Civil Law (Courtesy of Amy Wilson, BS,
RT(R), RDMS, RVT)
Bonnie F. Fremgen

Figure 2.5
Felony Case Process (Adapted from “A Citizen’s Guide to
Washington Courts,”
Washington State Office of Administrator for the Courts, 1997.)
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Figure 2.6
Misdemeanor Case Process (Adapted from “A Citizen’s Guide
to Washington Courts,”
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Trial Process
• Grand Jury consists of 12–23 private
citizens
• Hears evidence about case
• Determines if case merits court hearing
• Serves as filter
• Votes on whether to move indictment to
trial court
Bonnie F. Fremgen
The Procedure
• Litigation: may result when two parties

are unable to solve a dispute by
themselves
• Plaintiff: the person or institution who
brings an action into litigation
• Defendant: the person or institution who
is being sued
Bonnie F. Fremgen
The Procedure
• Settling out of court: occurs when
attorneys for both sides work out a
settlement
• Waive: both parties (defendant and
plaintiff) give up their right to a jury trial
• Trial: begins with opening statements
made by attorneys for each side of the
case

Bonnie F. Fremgen
The Procedure
• Closing argument: attorneys for the
plaintiff and the defendant make closing
speeches or summaries of their case
• Appeal: plaintiff or defendant may ask
(appeal) a higher court to review the
decision
Bonnie F. Fremgen

Figure 2.7
The Procedure for a Civil Trial (Adapted from “A Citizen’s
Guide to Washington Courts,”
Bonnie F. Fremgen
Summary Judgment
• Request made by an attorney
• Takes place in a civil trial
• Asks the court judge to declare no need
for a trial
• Means neither plaintiff nor defendant
entitled to win based on existing law
Bonnie F. Fremgen

Subpoena
• Discovery: process by which facts are
discovered
• Deposition: oral testimony before an
officer of the court
• Subpoena duces tecum: court order to
appear in court and bring records
Bonnie F. Fremgen
Standards of Proof
• Several different levels of proof are
required

• Civil case: court looks at “preponderance
of evidence”
• Civil case places weight on evidence that
is more credible and convincing
• Criminal case: needs proof “beyond a
reasonable doubt”
Bonnie F. Fremgen
Expert Witness
• Professional who has special knowledge
or experience
• Assists jury or judge in determining
accuracy of facts in case
• Often testifies to what standard of care is
• Generally paid a fee
• Clarifies points of knowledge not readily
understood by the jury or judge

Bonnie F. Fremgen
Testifying in Court
• Tell the truth
• Be professional
• Remain calm
• Do not answer a question that you do not
understand
• Present only facts
• Do not memorize testimony
Bonnie F. Fremgen

Importance of the Legal
System for the Physician
and the Healthcare
Professional
Chapter 3
Bonnie F. Fremgen
Medical Practice Acts
• Establish examining boards
• Provide baseline for practice of medicine
• Determine prerequisites for licensure
• Forbid practice of medicine without a
license
• Specify conditions for renewal,
suspension, and revocation of licenses

• Vary from state to state
Bonnie F. Fremgen
Licensure of Physician
• Examination
– National Board Medical Examination
(NBME)
– Federal Licensing Examination (FLEX)
– U.S. Medical Licensing Examination
(USMLE)
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• Endorsement: an approval or sanction
• Reciprocity: cooperation of one state in
granting license to practice medicine to a
physician already licensed in another
state
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• Registration:
• Occurs annually or biannually
• Physicians must pay a fee
• Physicians are required to complete
seventy five hours of CME in a three year

period
Bonnie F. Fremgen
When Valid License Is Not
Needed by a Physician
• When employed by federal medical
facilities (but must be a licensed
physician to practice medicine in some
state)
• In an emergency
• While establishing residency
• When engaged solely in research
Bonnie F. Fremgen

Revocation and Suspension
• Unprofessional conduct: falsifying
records, gross immorality
• Commission of a crime:
Medicare/Medicaid fraud, rape, murder,
larceny, narcotics conviction
• Personal incapacity: physical or mental
incapacity
Bonnie F. Fremgen
Licensure and Certification of
Allied Health Professionals
• Licensure: graduate from accredited

school and pass national exam of
competency
• Certification: meet standards set by
accreditation body and pass national
exam of competency
Bonnie F. Fremgen
Accreditation
• Voluntary request of official review by
accrediting agency
• Examine policy and procedures of
agency
• Must demonstrate that the institution
maintains high standards
• Examples: JCAHO and CAAHEP

Bonnie F. Fremgen
Standard of Care
• Ordinary skill and care that must be used
by medical practitioners
• Must provide same knowledge, care, and
skill that similarly trained physician and/or
medical professional would provide under
same circumstances
• Perform as “reasonable and prudent”
person would perform
Bonnie F. Fremgen

Physicians Are…
• Not obligated to treat everyone in case of
emergency
• Expected to use reasonable, ordinary
skill and care (not extraordinary)
• Expected to exhaust all resources
available to them for patient care
• Not to expose patients to undue risk
Bonnie F. Fremgen
Prudent Person Rule
(also called the “reasonable person standard”)
• Must provide following information to
patient:
– Diagnosis
– Risk and consequences of treatment

– Expected benefits of treatment or procedure
– Alternative treatments
– Prognosis if no treatment
– Cost and expected pain
– Follow acceptable standard of care
Bonnie F. Fremgen
Confidentiality
• Keeping private all information about
patient
• No disclosure without written consent
• Medical Patient Rights Act: a federal
law that gives all patients right to have
privacy respected and records held
confidential

Bonnie F. Fremgen
Statute of Limitations
• Period of time patient has to file lawsuit
• Usually one to three years
• Discovery Rule: begins when problem
discovered or when the patient should
have known of the injury
Bonnie F. Fremgen

Good Samaritan Laws
• State laws help protect health care
professionals and ordinary citizens from
liability while giving care in emergency
• No one is required to provide aid –
Except in Vermont
Bonnie F. Fremgen
Good Samaritan Laws
• Only required to act within limits of
acquired skill and training
• Once you start you must continue until
help arrives or you physically cannot
continue

Bonnie F. Fremgen
Respondeat Superior
• “Let the master answer”
• Employer liable for acts of employee
within scope of employment
Bonnie F. Fremgen
Employee’s Duty to Carry Out
Orders
• Duty to interpret and carry out orders
• Duty to clarify ambiguous or erroneous
orders

• Duty to decline orders that appear
dangerous for patient and to notify
physician
Bonnie F. Fremgen
Scope of Practice
• Must understand and work within scope
of practice for discipline
• Must understand and practice within
guidelines of profession
• Must understand and follow chain of
command so no employee makes
decision he or she is unqualified to make
Bonnie F. Fremgen

Employer’s Duty to Employees
• Responsibility to provide safe
environment for employees and staff
• Most have liability insurance to cover
accidents and unforeseen incidents
• May bond employees who handle money
• Some have liability insurance for auto if
used for work-related business
Bonnie F. Fremgen
Risk Management
• A practice used to control or minimize
incidence of problem behavior that might

result in injury to patients and employees
and liability for physician/employer
– Identify risk behaviors and practices
– Develop and follow plan of action to
eliminate problem behavior
– Address corrective actions in policy and
procedure books and employee handbooks
Bonnie F. Fremgen
Introduction to Medical
Law, Ethics, and Bioethics
Chapter 1

Bonnie F. Fremgen
• Illegal is almost always unethical. For
example, although marches during the
Civil Rights movement were illegal, they
were certainly not unethical.
• Basic understanding of law as it applies
to medical practice is essential
• Helps to protect patients from poor
medical care
Why Study Law, Ethics, and
Bioethics?
Bonnie F. Fremgen

• Helps protect employee and employer
from lawsuits
• Assists medical professional in making
decisions based on reason and logic
rather than on just emotion
• We live in a litigious society.
Why Study Law, Ethics, and
Bioethics?
Bonnie F. Fremgen
• Addresses legal rights and obligations
that affect patients and protect individual
rights, including rights of health care
employees
• Provides yardstick to measure or judge
actions

• Punishes unlawful actions
• Laws are rules or actions prescribed by a
government authority that have a binding
legal force
Medical Law
Bonnie F. Fremgen
• Regulate how medicine is practiced in
each state
• Provide legal definition for the practice of
medicine in that state
• List requirements and methods for
licensure
• Define what constitutes unprofessional
conduct
Medical Practice Acts

Bonnie F. Fremgen
• Branch of philosophy related to morals,
moral principles, and moral judgment
• Morality is being virtuous; practicing
right conduct
• Uses reason and logic to analyze
problems and find solutions
• Concerned with actions and practices
that improve welfare of people in a moral
way
Ethics
Bonnie F. Fremgen

• Concerns issues related to practice
of medicine
• Explores and promotes principles guiding
conduct of health care professionals
• Involves the welfare and consideration of
others in deciding how to act
Medical Ethics
Bonnie F. Fremgen
• Greatest good for the greatest number
• Impact of actions on welfare of society as
a whole, rather than merely the individual
• Ends justify the means
Utilitarianism

Bonnie F. Fremgen
• Example: Medicare
• Weakness:
• The rights of some people, such as the
poor or ill, may be ignored
• Can result in biased allocations
• Virtually impossible to quantify all
variables
• The vulnerable (young, sick,
handicapped) may be ignored
Utilitarianism
Bonnie F. Fremgen

• Emphasis on individuals’ rights
• Rights belong to all people
• Weakness: may result in individualist,
selfish behavior—even anarchy
Rights-Based Ethics
Bonnie F. Fremgen
• Focuses on performing duty
• Explores conflicting opinions about “duty”
• Differs depending on professional role
(i.e., RN, physician assistant, medical
assistant)
• Weakness: difficult to know who
determines one’s duty
Duty-Based Ethics

Bonnie F. Fremgen
Justice-Based Ethics
• Based on a “veil of ignorance” to allow
decision-makers to be impartial in their
decisions
• Weaknesses:
• Unfair for the health to subsidize the
unhealthy?
• Due to media coverage and huge
healthcare system it is impossible to
have a “veil of ignorance”
Bonnie F. Fremgen

• Emphasis on people, not on decisions or
principles involved
• Based on character traits such as
integrity
Virtue-Based Ethics
Bonnie F. Fremgen
• Virtues are good habits
• Examples: fairness, honesty, courage,
and justice
• Seeking the “good life”
• Weakness: a person may become too
trusting and complacent

Virtue-Based Ethics
Bonnie F. Fremgen
• Beneficence
• Fidelity
• Gentleness
• Humility
• Justice
• Perseverance
• Responsibility
• Sanctity of or
respect for life
• Tolerance
• Work
Values That Drive Ethical
Behavior

Bonnie F. Fremgen
• Respect
• Integrity
• Honesty
• Fairness
• Empathy
• Sympathy
• Compassion
• Loyalty
Interpersonal Ethics
Bonnie F. Fremgen

• Privacy, or confidentiality
• Due process
• Workplace free from sexual harassment
• Comparable worth
Workplace Issues
Bonnie F. Fremgen
1. Determine the facts
2. Define the precise ethical issue
3. Identify the major principles, rules, and
values
4. Specify the alternatives
5. Compare values and alternatives
6. Assess the consequences
7. Make a decision
Seven-Step Model for Examining

Ethical Dilemmas
Bonnie F. Fremgen
1. Gather information
2. Clarify the ethical issues
3. Resolve the dilemma
Dr. Bernard Lo’s Clinical Model
Bonnie F. Fremgen
1. Is it legal?

2. Is it balanced? For example, does one
person or group benefit or suffer more
than another as a result of your actions?
3. How does it make me feel (i.e.,
embarrassed, proud)?
Three-Step Ethics Model
Bonnie F. Fremgen
• Not just about how you feel
• Not about sincerity of beliefs
• Not about emotional response
• Not only about religious beliefs
What Ethics Is Not
Bonnie F. Fremgen

• Moral dilemmas and issues resulting
from advanced medicine and medical
research relating to life
• Examples: cloning, stem cell research,
and gene therapy
• Bioethicists: specialists in the field of
bioethics
Bioethics
Bonnie F. Fremgen
• Examine ethical issues relating to patient
care
• Contain a variety of members from many
health care disciplines

• Can serve in advisory capacity to
patients, families, and staff for case
review of difficult ethical issues
• Develop and review health policies and
guidelines regarding ethical issues
Ethics Committees
Bonnie F. Fremgen
• Gather and evaluate information about
services
• Examine results
• Compare information against a standard
Quality Assurance
Bonnie F. Fremgen

• Certain rules, or standards of
professional behavior, that physicians
practice in their relationships or conduct
with other physicians
• For example, telephone calls from one
MD to another should be taken promptly
Medical Etiquette
Bonnie F. Fremgen
Today’s Healthcare
Environment

Chapter 4
Bonnie F. Fremgen
Today’s Health Care
Environment
• Major changes since 1965 with Medicare
and Medicaid
– Increased life expectancy = more older adults
– Technological discoveries
• Preventative care and patient education
stressed (but not funded)
• Government legislation
Bonnie F. Fremgen

Today’s Health Care
Environment
• Fixed-payment plans—medical care for a
fixed monthly fee
• Third-party payers
Bonnie F. Fremgen
Managed Care Organization
(MCO)
• Gatekeeper
• Health Maintenance Organization (HMO
– offers a wide range of services to members for a
predetermined fee by a limited group of providers

• Preferred Provider Organization (PPO
– patient must use a medical provider who is under
contract with the insurer for an agreed-upon fee
• Exclusive Provider Organization (EPO)
– combines the concepts of HMO and PPO
Bonnie F. Fremgen
Federal Assistance Programs
• Medicare
– Health care coverage for elderly or seriously
disabled or with end stage renal disease or
other debilitating ailments regardless of
wealth or income
– Rationing of health care

Bonnie F. Fremgen
Medicaid
• Medicaid: A joint Federal–State program
• Federal program implemented by
individual states
• Financial assistance to insure poor and
indigent
• Rationing takes place
• Not all providers accept Medicaid
coverage
Bonnie F. Fremgen

Diagnostic Related Groups
(DRGs)
• Classifies Medicare patient by illness
• 467 illness categories
• Hospitals receive preset sum for
treatment of category regardless of “bed
days” used
• Discourages treatment of severely ill
patients; patients often are discharged
before ready
Bonnie F. Fremgen
Ethical Considerations
of Managed Care
• Wealthy may have greater access to care
and treatment than poor patients

• Must provide minimum standard of care
to everyone
• Patients must be fully informed of
consequences of obtaining health care
elsewhere
• Bait-and-switch
• Profit may be more important than patient
Bonnie F. Fremgen
Types of Medical Practice
• Solo practice
• Sole proprietorship
• Partnership
• Associate practice
• Group practice
• Professional corporation

Bonnie F. Fremgen
Ethics of Fee Splitting
• Fee splitting: one physician offers to pay
another for referral (unethical and illegal)
• Fee splitting vs. referrals
• Franchise: business run by individual to
whom franchisor grants exclusive right to
market product or service in certain
market area (ethical)
• Franchisees: persons or companies that
hold a franchise
Bonnie F. Fremgen
Medical Specialty Boards

• Over 23 specialty boards
• Seek to improve quality of medical care
• Encourage physicians to further
education and training
• Evaluate candidates who apply and pass
exam
• Board-certify those who pass
Bonnie F. Fremgen
• American College of Surgeons
– Fellow of American College of Surgeons
(FACS)
• American College of Physicians
– Fellow of American College of Physicians
(FACP)
Medical Specialty Boards

Bonnie F. Fremgen
• Licensed personnel include:
– Registered nurse
– Nurse practitioner
– Licensed practical nurse
– Pharmacist
Bonnie F. Fremgen

• Certified personnel include:
– Physician assistant
– Medical assistant
– Medical transcriptionist
– Lab technician
– Lab technologist
Bonnie F. Fremgen
Conscience Clause
• Enacted by several states
• Employees may have a moral or religious
objection to assisting with certain
procedures (sterilization, abortion)
• Employee cannot be discriminated

against under the state’s statute

Medical Law and Ethics, Fourth Edition Bonnie F. Fremgen

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