Health Care Managaement Question
ashby104
Chapter_6_Introduction_to_Law1.pptxChapter 6 Introduction to Law
Learning Objectives (1 of 2)
Understand the meaning and objectives of tort law.
Describe the elements of negligence.
Explain how the commission and omission of an act differ.
Describe the importance of foreseeability in a negligence case.
Describe intentional torts and how they might occur in the healthcare setting.
2
Learning Objectives (2 of 2)
Describe the various crimes and give examples of how they might occur in the healthcare setting.
Explain the various elements of a contract.
Describe the pretrial and trial process.
Tort Law
A tort is a wrong, other than a breach of contract, committed against a person or property for which a court provides a remedy, generally in the form of monetary damages.
Objectives of Tort Law
Preservation of peace between individuals
Fault-finding for wrongdoing
Deterrence to wrongful acts
Indemnify injured person(s)
Negligence
Commission or omission of an act that a reasonably prudent person would or would not do under given circumstances.
Commission of an Act
Administering wrong medication
Administering wrong dosage of a medication
Administering medication to the wrong patient
Performing a procedure without patient consent
Performing procedure on wrong patient
Surgically removing the wrong body part
Failing to assess and reassess a patient’s nutritional needs
Omission of an Act
Failure to administer medication(s)
Failure to order required diagnostic tests
Failure to follow up on abnormal test results
Failure to perform “time-out” prior to the start of surgery to ensure the correct procedure is being conducted on the correct patient at the correct site
Malpractice
Negligence of a professional person:
Surgeon who conducts surgery on the wrong body part.
Nurse who administers wrong medication, injuring patient.
Pharmacist who mislabels a medication and the patient is harmed.
Forms of Negligence
Malfeasance
Misfeasance
Nonfeasance
Malfeasance
Execution of an unlawful or improper act.
Performing a partial birth abortion when prohibited by law.
Performing a procedure without having the appropriate credentials.
Misfeasance
Improper performance of an act.
Wrong-sided surgery.
Leaving an instrument in the patient’s body.
Nonfeasance
Failure to act when there is a duty to act.
Failure to prescribe antibiotics when indicated.
Failure to respond to emergency call.
Four Elements of Negligence
Duty to care
Breach of duty
Injury
Causation
Duty to Care
Legal obligation of care imposed on one to safeguard rights of others.
Duty created by statute:
Defendant must have been within specified class of persons outlined in the statute.
Plaintiff must have been injured in a way statute was designed to prevent.
Plaintiff must show that injury would not have occurred if the statute had not been violated.
Standard of Care
Actual performance of an individual in a given situation will be measured against what a reasonably prudent person would or would not have done.
Duty to Hire Competent Staff
A nurse was hired sight unseen over the telephone. The applicant falsely stated in his application that he was a licensed LVN. In reality, he was not an LVN and he had committed 56 criminal offenses of theft. He eventually assaulted a resident.
Court ruled for plaintiff as nursing center failed in its duty to care by not validating the nurse’s license.
Breach of Duty
Must be a deviation from recognized standard of care.
Must be failure to adhere to an obligation.
When a physician fails to respond to on-call emergency room duties.
Failure to perform an adequate history and physical in the emergency department.
Example: Failure to properly diagnose a patient at risk for Ebola and discharging that patient back into the community.
Injury/Actual Damages
Actual damages must be established.
Without injury, damages cannot be awarded.
Causation/Proximate Cause (1 of 2)
Must be a reasonable, close, and causal connection between the defendant’s negligent conduct and resulting damages suffered.
Example: In the Hastings case, a person does not bleed to death in a hospital emergency department over a 2-hour period without some surgical intervention.
Causation/Proximate Cause (2 of 2)
Test for foreseeability is whether a person of ordinary prudence and intelligence should have anticipated danger to others caused by a negligent act.
In the Hastings case, it was highly probable that the patient would die if the bleeding was not stopped.
“The broad test of negligence is what a reasonably prudent person would foresee and would do in the light of this foresight under the circumstances.”
Intentional Torts
Assault and battery
False imprisonment
Defamation of character
Invasion of privacy
Infliction of mental distress
Assault and Battery
Assault: Deliberate threat, coupled with apparent ability to do physical harm to another. Actual contact not necessary.
Battery: Intentional touching of another’s person in socially impermissible manner without person’s consent.
Assault
Person attempting to touch another unlawfully must possess apparent present ability to commit battery.
Person threatened must be aware of or have actual knowledge of an immediate threat of a battery and must fear it.
False Imprisonment
Unlawful restraint of individual’s personal liberty or unlawful restraining or confining an individual.
Defamation of Character
Involves communications to someone other than the person defamed that tends to hold that person’s reputation up to scorn and ridicule.
Slander (verbal defamation)
Libel (written defamation)
Invasion of Privacy
Right to
Be left alone
Be free from unwarranted publicity
Be free from exposure to public view
Be free from unwarranted intrusions into a one’s personal affairs
Personal privacy
Have records/kept confidential
Infliction of Mental Distress
Conduct that is so outrageous that it goes beyond bounds tolerated by decent society.
Criminal Law
A crime is any social harm defined and made punishable by law.
Purpose of criminal law:
Maintain public order and safety.
Protect the individual.
Use punishment as a deterrent to crime.
Rehabilitate the criminal for return to society.
Classification of Crimes
Misdemeanor: An offense punishable by less than 1 year in jail and/or a fine.
Example: Petty larceny
Felony: A much more serious crime that is generally punishable by imprisonment in a state or federal penitentiary for more than 1 year.
Examples: Rape, murder
Criminal Procedure
Arrest
Arraignment
Indictment
Conference
Prosecutor
Defense attorney
Criminal trial
Healthcare Fraud
Unlawful act, generally deception for personal financial gain.
Schemes to Defraud (1 of 3)
Billing for services not rendered.
Falsifying a patient’s diagnosis to justify tests, surgeries, or other procedures that are not medically necessary.
Misrepresenting procedures performed to obtain payment for services not covered.
Upcoding services (billing for a more costly service than the one actually performed).
Schemes to Defraud (2 of 3)
Upcoding medical supplies and equipment (billing for more expensive equipment than delivered to the patient).
Unbundling (billing each stage of a procedure as if it were a separate procedure).
Billing for unnecessary services not medically indicated.
Accepting kickbacks for patient referrals.
Schemes to Defraud (3 of 3)
Waiving patient copays or deductibles and overbilling the insurance carrier or benefit plan.
Billing a patient more than the copay amount for services that were prepaid or paid in full by the benefit plan under the terms of a managed care contract.
Overbilling the insurance carrier or benefit plan.
Billing for Unnecessary Procedures
Physician receives 45-year prison sentence for fraud.
The U.S. Supreme Court refused to hear Dr. Fata’s appeal of his conviction for running a scheme that involved billing the government for medically unnecessary cancer and blood treatments.
Home Care Fraud
On the rise
Not easy to detect
Pharmacist Billing Scam
A pharmacist dispensed the generic equivalent of a drug and billed for the higher-cost brand name.
Discuss the ethical and legal issues.
Self-Referrals
Dr. L ordered unnecessary highly expensive esoteric lab tests for his patients. Dr. L referred his patients to a private lab, in which he had 30% ownership.
Discuss the ethical and legal issues.
Ethical and Legal Issues
Ethical issues
Truthfulness
Professional codes of ethics
Legal issues
Fraud
Other Criminal Acts
Manslaughter
Murder
Theft
Medical identity theft
Contracts
A contract is a special kind of agreement, either written or oral, that involves legally binding obligations between two or more parties.
Elements of a Contract
Offer/Communication
Consideration
Acceptance
Kinds of Contracts
Employment contracts
Exclusive contracts
Commercial ethics and noncompetition agreements
Trial Procedure: Pleadings
Summons and complaint
Answer
Bill of particulars
Trial Procedure: Discovery
Process of investigating the facts of a case before trial.
Obtain evidence that might not be obtainable at the time of trial.
Isolate and narrow the issues for trial.
Gather knowledge of the existence of additional evidence that may be admissible at trial.
Obtain leads to enable the discovering party to gather further evidence.
Trial Procedure: Preparation of Witnesses
The manner in which a witness handles questioning at a deposition or trial is often as important as the facts of the case.
Each witness should be well prepared before testifying.
Preparation should include a review of all pertinent records.
Trial Procedure: Participants
The court
Decides questions of law
The jury
Determines questions of fact
Trial Procedure: Subpoenas
Subpoena: A legal order requiring the appearance of a person and/or the presentation of documents to a court or administrative body.
Subpoena ad testificandum: Orders the appearance of a person at a trial or other investigative proceeding to give testimony.
Subpoena duces tecum: A written command to bring records, documents, or other evidence described in the subpoena to a trial or other investigative proceeding.
Trial Procedure: Opening Statements
Opening statements are provided by:
The plaintiff(s)
The defendant(s)
Trial Procedure: Burden of Proof
The plaintiff is required to show that the defendant violated a legal duty.
The case is dismissed if the evidence does not support the defendant’s allegations.
Trial Procedure: Kinds of Evidence
Direct evidence
Demonstrative evidence
Documentary evidence
Examination of witnesses
Expert witnesses
Defense of One’s Actions
Assumption of a risk
Comparative negligence
Contributory negligence
Good Samaritan laws
Defenses Against Recovery
Ignorance of fact and unintentional wrongs
Statute of limitations
Sovereign immunity
Trial Procedure
Closing statements
Judge’s charge to the jury
Jury deliberation
Damages
Appeals
Review Questions
Describe the objectives of tort law.
Discuss the distinctions among negligent torts, intentional torts, and strict liability.
Explain the difference between a commission and omission of a negligent act.
Explain the difference between negligence and malpractice.
What are the elements that must be proven in order to be successful in a negligence suit? Illustrate your answer with a case. (The facts of the case can be hypothetical.)
Describe the categories of intentional torts.
How does slander differ from libel? Give an example of each.
Describe the objectives of criminal law.
Review Questions
Describe the difference between a misdemeanor and a felony. Give an example of each.
Discuss why physicians have been so reluctant to remove a patient’s life-support systems.
Describe a scheme to defraud.
Explain the elements of a contract.
Describe why exclusive contracts are so controversial.
Review Questions
Describe the trial process, including pretrial motions and the functions of the judge, jury, and attorneys.
Describe the kinds of evidence that a plaintiff can present in order to establish a negligent act.
What defenses can a defendant present in order to refute a plaintiff’s evidence?
Review Questions
Describe how statutes of limitations favor defendants in a lawsuit.
Describe the various types of damages that can be awarded a plaintiff.
Explain why either the plaintiff or defendant may wish to appeal a jury’s verdict.
Review Questions
