Healthcare Law - Terminology
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A slide show outining the Healthcare law basics review, designed to for groups such as a board of directors or an HIM department.
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Healthcare Law - Terminology
- 2. VERDICT LIABLE OR NOT LIABLE VERDICT GUILTY OR NOT GUILTY Preponderance of the evidence Beyond a reasonable doubt CIVIL CRIMINAL
- 3. PROFESSIONAL ASSOCIATIONS STATUTES, REGULATIONS, CASE LAW ESTABLISH STANDARDS OF CARE
- 4. Not exercised Best Possible Judgment Failed to Guard Against Risk Dangerous behavior is known or should have been known.
- 5. Malpractice -- execution of an unlawful or improper act Criminal Negligence -- Reckless disregard, indifference to injury. Malfeasance – The execution of an unlawful or improper act. Misfeasance – The improper performance of an act resulting in injury to another Nonfeasance – The failure to act when there is a duty to act as a reasonably prudent person would act in similar circumstances Ordinary Negligence – the failure to exercise ordinary care, as would be done by a reasonably prudent person. Gross Negligence – Intentionally omitting care that would be proper or providing care that would be substandard of improper. Categories Further Categorization Degree of Wrongdoing
- 6. Most Healthcare Litigation Is CivilLaw Damages are awarded as the remedy Via a lawsuit In which the defendant is found Liable or not Liable Most Healthcare Litigation unintentional involves Torts Intentional Unintentional Strict liability 3 Types of Torts Most Healthcare Litigation is Unintentional negligence (Unintentional Tort)
- 7. Document patient’s insistence You can’t threaten to break someone's arm if they don’t obey you Deliberate threat Present ability to cause physical harm Intentionally touching another person’s body in a socially impermissible manner without that person’s consent Preventing a patient from leaving a hospital. Except for a contagious disease or potentially dangerous mentally ill patient. Have patient sign a discharge against medical advice. If physical force is used the provider may be liable for false imprisonment and battery
- 8. Patient Authorization for Release of Information False communication that injures that person’s reputation. “A willful and intentional misrepresentation that could cause harm or loss to a person or property” “The right to be left alone…the right to be free from unwarranted publicity and exposure to public view, and the right to live one’s life without having one’s name etc. made public against ones will”
- 9. Brings action or complaint in a civil case and must prove wrong-doing. Has Burden of Proof The object of the lawsuit Given to a party, who has information in a legal case. A formal proceeding as part of the discovery process.
- 10. Instructs the recipient to bring documents and other records to a deposition or to court Hospital holds itself responsible for its employee’s actions, acting at the hospital’s direction within the scope of their job The burden of proof shifts to the defendant The thing speaks for itself Let the master answer Under penalty to bring with you Local courts must apply the decisions of higher courts in the same system in cases with similar fact patterns Let the decision stand
- 11. References Brodnik, M. S., & Rinehart-Thompson, L. A. (2012). Fundamentals of law for health informatics and information management. (2nd ed.). Chicago : AHIMA Press Publications. Russell, L. A., & Bowen, R. K. (2013). Legal issues in health information management. In K. LaTour & S. Eichenwald Maki (Eds.), Health Information Management (4th ed., pp. 299-308). Chicago : AHIMA Press Publications. HIA 330 Unit 1 Assignment 2 Borchers L.J.
Editor's Notes
- Welcome to this brief presentation of legal terminology needed in the Healthcare field.
- Civil law and Criminal law are both involved in the Healthcare field. Civil law is concerned with the “relations between individuals, corporations, government entities and other organizations” (Russsell & Bowen, 2013) p. 302). Criminal law involves the government prosecuting “wrongful acts against public health, safety, and welfare” (p. 303). HIPAA violations are always criminal . The verdict of civil law is termed as liable or not liable, different from the guilty or not guilty in criminal law. The results of civil law usually involve monetary restitution, while the results of criminal law may include a fine and/or a punishment such as imprisonment or probation (pp. 303-304). Civil cases must be proved by a “preponderance of the evidence,” whereas criminal cases use the higher standard of “beyond a reasonable doubt” (p. 303). Healthcare incidents are mostly civil law involving negligence (p. 304).
- Standard of Care is a phrase that simply means “what an individual is expected to do or not do in a given situation” (Russell & Bowen, 2013, p. 304). You can find Standards of Care through Professional Associations that one belongs to, and in statutes and regulations. Standards of Care are “expected behaviors” of your profession (p. 304). Standards are not enforceable laws and can be impacted by case law when the courts decide to change a standard (p.304). National Standards are replacing local standards so that healthcare quality is equalized across geographic regions (p. 304). Most negligence torts result from conduct outside the accepted Standard of Care (p. 304).
- Negligence is careless conduct outside the generally accepted Standard of Care. If you know you should not do something that is your first clue that you might not be exercising the best possible judgment or guarding against risk.
- Forms of Negligence are: Malpractice --Negligence, “carelessness of a professional person such as a physician, nurse or pharmacist” (Russell & Bowen, 2013 p. 304). Criminal Negligence—Reckless disregard, indifference to injury. Could be civil and criminal injury. Further categorization Malfeasance – Execution of an unlawful act (p.304). Misfeasance – “Improper performance of an act, resulting in injury” (p.304). Nonfeasance – Failure to act when there is a reasonable person’s duty to act (p.304) Degree of wrongdoing Ordinary negligence—doing or not doing something a prudent person would do (p.304) Gross negligence – intentionally omitting proper care or providing substandard care (p.304)
- A Tort is “A civil wrong for which the law provides a remedy in the form of a lawsuit to recover damages” (Brodnik & Rinehart-Thompson, 2012 p. 525). A negligence tort is not a criminal case. One party seeks compensation for harm inflicted and seeks to prevent the wrongdoer from repeating offense (Russell & Bowen, 2013, p. 304). The three categories of tort liability are negligence, intentional and strict and products liability. Healthcare incidents are concerned with negligence torts (p. 304).
- Even though most of healthcare litigation is negligence-related and therefore an unintentional tort, there are instances when you as a provider could be accused of intentional negligence that includes actions such as Assault – “deliberate threat” plus “present ability to cause physical harm”(Russell & Bowen, 2013, p. 305). An example of this would be if a large male ED nurse tries to motivate a frail elderly woman by telling her that he will break her arm if she doesn’t comply (p. 305). It is important to note that the male nurse did not have to touch her– just threaten her -- to be considered assault. Battery - “intentionally touching another person’s body in a socially impermissible manner without that person’s consent” (p. 305). If you, as a surgeon, operate on someone without the proper consent forms on file, you are committing battery. It does not matter if the patient was sedated, and didn’t realize that the battery occurred. It also does not matter that the patient benefited from the operation. Consent forms are essential. Without consent forms the hospital and physician are held liable for any harm to the patient. The physician could be liable for battery (Russell & Bowen, 2013, p.305). False Imprisonment—If you prevent a patient from leaving a hospital--except for a contagious disease or potentially dangerous mentally ill patient—you are committing false imprisonment. Document the patient’s insistence on leaving the facility. Ask the patient to sign a discharge against medical advice form releasing the hospital from liability. If physical force is used the provider may be liable for false imprisonment and battery (Russell & Bowen, 2013, p.305).
- Healthcare providers have the defense of Privilege— “communication made in good faith, on the proper occasion, in the proper manner, and to persons who have legitimate reason to receive the information.” A healthcare provider has a “higher duty...in the interest of society” (Russell & Bowen, 2013, p. 306). Defamation of character – false communication that injures that person’s reputation. Libel is written; slander is spoken. The Plaintiff must prove: Defamatory statement was made Statement was not “privileged” and made to a 3rd person At least negligence occurred- the defendant failed to do something or not do something that he/she should have done Actual or presumed damages occurred (p. 305) Healthcare professionals are required to report cases of communicable diseases, and are protected from libel in those instances. Fraud – “A willful and intentional misrepresentation that could cause harm or loss to a person or property” (Russell & Bowen, 2013, p. 306). A physician is held liable if he/she claims a procedure will effect a cure, when it actually will not. Billing a 3rd party payer for an procedure that was never performed is also fraud. Invasion of Privacy “the right to be left alone – the right to be free from unwarranted publicity and exposure to public view, and the right to live one’s life without having one’s name etc. made public against ones will” (Russell & Bowen, 2013, p. 306). HIPAA law holds health care providers responsible for protecting the private patient information. Always get the proper authorization to release or disclose patient information (p. 306).
- Plaintiff – Presents evidence against the defendant. The plaintiff must prove wrong doing– has the Burden of Proof. The plaintiff presents evidence against the defendant (Russell & Bowen, 2013, p. 303-304). Defendant – Is the accused wrong-doer, against whom the lawsuit is brought (p.303). Interrogatory – Discovery device consisting of written questions (p. 303). Requests for production Discovery device consisting of document requests. Both the Interrogatories and the Requests for Production are given to parties that have information to contribute in a legal case (p. 303). Deposition – A formal proceeding in the discovery process for oral testimonies of individuals (p. 303)
- Supoena Duces Tecum Under penalty to bring with you Instructs the recipient to bring documents and other records to a deposition or to court. Often “records custodians” are served with this document to appear personally with certain documents, either originals or copies, of health record components (Brodnik & Rinehart-Thompson, 2012, p. 524, p.37). Respondeat Superior (Secondary Liability or Vicarious Liability) Let the master answer The hospital holds itself responsible for its employee’s action, acting at the hospital’s direction within the scope of his/her job. The “hospital is liable to the patients for the torts of its employees (Brodnik & Rinehart-Thompson, 2012, p. 521. p.96). However, physicians who are granted privileges to practice in a hospital are no longer employees but are considered independent contractors. If the hospital does not control the manner in which the physician provides his/her services and the patient is made aware of this at admission to the hospital, the hospital is not liable for any negligence by this independent contractor physician. Res Ipsa Loquitur The thing speaks for itself The facts or circumstances of a case infer negligence and the burden of proof shifts to the defendant. This comes from the idea that “some events ordinarily do not occur in the absence of negligence” (Brodnik & Rinehart-Thompson, 2012, p. 521, p. 92). An example of this would be instruments left inside a patient’s body. Stare Dicisis Let the decision stand Local courts must apply the decisions of higher courts in the same system, in cases with similar fact patterns (Brodnik & Rinehart-Thompson, 2012, p. 523). .